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AMERICAN 

CONSULAR   JURISDICTION 

IN   THE    ORIENT 


BY 


FEANK  E.   HINCKLEY 

Doctor   of  Philosophy, 

Columbia   University  School  of  Political  Science; 

Clerk  of  the  United  States  Court  for  China 
/ 


WASHINGTOI^,  D.  C. 

W.  H.  LOWDEEMILK  AND  COMPANY 

1906 


COPTRIGHT,  1906,  BY  FRANK  B.  HINCKLEY 
ALL.    RIGHTS    RESERVED 


Published  July,  1906 


THE    MOODY-BARTON    PRESS 
ELIZABETH,    N.    J. 


PREFACE 


About  ten  years  ago  the  conclusion  of  the  treaties  for  the 
recognition  of  the  judicial  autonomy  of  Japan  brought  to 
public  attention  the  importance  and  the  peculiarities  of  the 
system  of  consular  extraterritorial  jurisdiction  under  which 
Europeans  and  Americans  had  been  privileged  to  reside  and 
trade  in  that  country.  Still  more  interest  in  these  privileges 
and  in  the  protection  of  foreigners  in  the  Orient,  particularly 
in  the  interior  of  Turkey  and  of  China,  has  since  then  de- 
veloped, and  with  items  of  news  about  the  political  condi- 
tions  and  the  commercial  exploitation  of  those  regions  ap- 
pearing in  the  press  from  day  to  day,  there  is  a  growing  de- 
sire for  better  and  more  fundamental  knowledge  of  the 
formal  relations  sustained  by  the  eastern  and  western  gov- 
ernments. 

There  have  been  published  in  England  and  on  the  con- 
tinent a  number  of  excellent  works  that  deal  with  extra- 
territoriality and  consular  jurisdiction.  The  works  to  whose 
authors  I  am  most  indebted  are:  Martens,  Das  Consular- 
wesen  und  die  Consularjurisdiction  im  Orient;  Feraud- 
Giraud,  La  juridiction  frangaise  dans  les  echelles  du  Levant 
et  de  Barbarie ;  De  Clercq  and  De  Vallat,  Guide  pratique  des 
consulats ;  Salem,  and  others,  articles  in  the  Journal  du  droit 
international  prive  et  de  la  jurisprudence  comparee  and  in 
the  Eevue  de  droit  internatipnal  et  de  legislation  comparee; 
Tarring,  British  Consular  Jurisdiction  in  the  East;  Piggott, 
Exterritoriality;  and  Hall,  The  Foreign  Powers  and  Juris- 
diction of  the  British  Crown. 

There  is  a  valuable  chapter  on  consular  jurisdiction  in 
Lawrence's  Wheaton.     No  American  author,  however,  has 


VUI  PREFACE 

written  a  special  treatise  upon  foreign  jurisdiction  except 
the  Hon.  E.  T.  Sheppard,  at  one  time  legal  adviser  to  the 
Japanese  government,  whose  monograph  Extraterritoriality, 
Tokio,  1871,  had  the  special  object  of  setting  forth  the 
reasonableness  of  the  assertion  by  Japan  of  the  liability  of 
foreigners  before  their  consular  courts  for  infractions  of 
harbor,  quarantine  and  hunting  regulations.  In  1880  and 
1881,  Mr.  Edward  Van  Dyck,  an  American  consular  clerk  at 
Cairo,  Egypt,  prepared  a  report  upon  the  capitulations  of 
the  Ottoman  Empire  since  1150,  and  the  report  was  pub- 
lished as  a  senate  document.  In  1887,  Mr.  G.  H.  Scidmore, 
an  American  consular  clerk,  published  at  Tokio  a  small 
volume  of  summarized  decisions  made  in  cases  tried  in 
American  consular  courts  in  Japan. 

A  compilation  of  treaties,  conventions  and  state  papers  of 
the  years  1894  to  1904  relating  to  China  and  Korea  has  re- 
cently been  made  under  the  direction  of  the  Hon.  W.  W. 
Eockhill,  now  minister  to  China.  Mr.  E.  T.  Williams,  Chi- 
nese secretary  to  the  American  legation  at  Peking,  pub- 
lished at  Shanghai,  in  1904,  a  volume  entitled  Recent  Chi- 
nese Legislation  Eelating  to  Commercial,  Eailway  and  Min- 
ing Enterprises. 

Only  a  few  cases  decided  in  the  exercise  of  foreign  juris- 
diction in  the  Orient,  either  British  or  American,  have  be- 
come available  through  publication.  Some  of  them 
are  discussed  in  the  English  works  above  referred  to.  The 
development  of  the  jurisdiction  in  the  Levant  under  various 
national  systems,  especially  the  French,  Italian  and  Greek, 
and  under  the  international  tribunals  of  Egypt,  may  be  fol- 
lowed in  the  digests  of  cases  and  notes  upon  them  in  the 
Journal  du  droit  international  prive,  the  series  of  which 
from  1874  to  1904  is  supplied  with  a  general  index.  Eeports 
of  the  cases  heard  in  British  consular  courts  in  China  have 
for  -many  years  been  regularly  published  at  Shanghai  in  the 
North  China  Herald  and  Supreme  Court  and  Consular  Ga- 
zette. This  publication  has  also  contained  reports  of  cases 
tried  in  the  American  and  other  consular  courts;  it  forms 
also  a  very  complete  and  valuable  record  of  public  opinion 


PREFACE  Ix 

upon  questions  arising  in  respect  to  the  privileges  of  extra- 
territoriality in  China.  The  weekly  numbers  of  the  Herald 
have  a  semi-annual  index.  For  the  use  of  files  of  this  pub- 
lication I  wish  to  thank  Professor  Friedrich  Hirth,  Dean 
Lung  Professor  of  Chinese  in  Columbia  University. 

But  the  chief  source  from  which  I  have  obtained  material 
has  been  the  correspondence  that  has  appeared  in  the  an- 
nually published  Papers  Relating  to  the  Foreign  Relations  of 
the  United  States,  1870  to  1904,  with  the  earlier  series 
usually  referred  to  as  the  Diplomatic  Correspondence,  1861 
to  1868,  both  of  which  series  were  provided  with  a  general 
index  in  1899.  The  general  series  of  congressional  docu- 
ments, from  1789  to  date,  has  also  been  searched  and  ma- 
terials therefrom  extensively  used.  These  documents  and 
the  diplomatic  correspondence  and  foreign  relations  papers 
obviously  afford  the  most  detailed  and  authoritative  expla- 
nation of  what  is  the  nature  of  the  privileges  enjoyed  by 
American  citizens  in  oriental  countries  and  what  measures 
of  protection  experience  has  shown  necessary  and  effective. 

In  reading  the  correspondence  contained  in  these  public 
documents  one  cannot  fail  to  appreciate  the  importance  and 
excellence  of  the  services  of  our  diplomatic  and  consular 
representatives.  To  them  has  been  entrusted  the  elabora- 
tion of  the  American  foreign  policy  and  the  promotion  of 
American  commerce  in  the  Orient,  the  high  character  and 
success  of  which  in  the  hundred  years  and  more  of  their 
existence  is  generally  known.  How  much  our  ministers  and 
consuls  have  individually  achieved  toward  this  general  result 
we  may  know  only  in  the  more  conspicuous  cases,  but  we  may 
look  with  pride  upon  their  accumulated  contributions  to  the 
national  honor  and  welfare. 

With  two  former  ministers  of  the  United  States,  each  of 
them  eminently  successful  in  the  solution  of  difficulties  per- 
taining to  extraterritorial  protection  of  American  citizens 
and  to  the  administration  of  justice  in  the  consular  courts, 
it  has  been  my  great  privilege  to  consult,  the  Hon.  Oscar  S. 
Straus,  minister  to  Turkey  from  1887  to  1889  and  again 
from  1898  to  1900,  and  the  Hon.  George  F.  Seward,  consul 


X  PREFACE 

and  consul-general  at  Shanghai  from  1861  to  1876  and  min- 
ister to  China  from  1876  to  1880. 

I  have  also  received  valuable  information  from  merchants 
and  from  missionaries,  and  particularly  from  the  Eev.  Henry 
0.  Dwight,  who  for  many  years  resided  in  Turkey  and  con- 
ducted in  behalf  of  the  missionaries  what  correspondence 
with  the  legation  at  Constantinople  the  situation  required. 

In  matters  pertaining  to  the  rights  of  citizens  under  the 
treaties  of  extraterritoriality  as  distinguished  from  the 
rights  secured  to  them  under  the  Constitution,  I  wish  grate- 
fully to  acknowledge  the  benefits  of  conference  with  Pro- 
fessor J.  W.  Burgess,  Dean  of  the  School  of  Political  Sci- 
ence of  Columbia  University. 

And  finally,  with  exceeding  gratitude  for  his  friendly  in- 
terest and  encouragement,  with  highest  admiration  of  his 
abilities  and  attainments,  his  contributions  to  legal  science 
and  his  services  in  the  principal  ofl&ces  in  the  Department  of 
State,  I  desire  to  acknowledge  my  obligations  to  Hon.  J.  B. 
Moore,  Professor  of  International  Law  and  Diplomacy  in 
Columbia  University,  whose  instruction  in  previous  years, 
whose  continuing  counsels  and,  in  the  end,  whose  reading 
and  criticism  of  the  entire  manuscript  have  enabled  me  to 
place  these  results  of  my  research  in  the  present  form. 

New  Yobk,  June  9,  1906 


Note:  This  edition  has  been  withheld  until  the  adjournment 
of  the  59th  Congress,  1st  Session,  notable  for  legislation  of  great 
importance,  including  the  Act  of  April  5,  1906,  reorganizing  the 
consular  service,  and  the  Act  of  June  30,  1906,  creating  a  United 
States  court  for  China.  In  conformity  with  these  Acts  and  the 
Statutes  relating  to  the  civil  service  an  Executive  Order  was  is- 
sued, June  27,  1906,  embodying  regulations  governing  appoint- 
ments and  promotions  in  the  consular  service.  The  leading  advo- 
cates of  this  legislation  have  been  Senators  Lodge  and  Spooner 
and  Representatives  Robert  Adams  and  Edwin  Denby.  A  num- 
ber of  American  citizens  familiar  with  conditions  in  China,  with 
them  Mr.  James  S.  Fearon,  Vice-President  of  the  International 
Banking  Corporation,  and  Mr.  Wade  Gardner,  New  York  Agent 
of  the   Hong  Kong  and   Shanghai   Banking   Corporation,   have 


PREFACE  xi 

shown  the  business  necessity,  wisdom  and  timeliness  of  this 
legislation. 

In  all  its  stages  and  in  its  final  forms  there  is  evidence  of  the 
pre-eminent  abilities  of  the  Hon.  Secretary  of  State,  Elihu  Root, 
and  the  guiding  mind  of  His  Excellency  the  President,  Theodore 
Roosevelt. 

It  has  been  the  author's  good  fortune  to  have  for  reference 
before  closing  work  on  this  book  an  early  copy  of  the  govern- 
ment publication  of  Hon.  J.  B.  Moore's  International  Law  Digest, 
containing  162  pages  on  the  subject  of  extraterritorial  jurisdic- 
tion, being  mainly  excerpts  from  and  references  to  manuscript 
instructions  and  dispatches  on  file  in  the  Department  of  State. 

Acknowledgments  for  recent  assistance  are  gratefully  made 
also  to  Hon.  Robert  Bacon,  Assistant  Secretary  of  State,  to  Hon. 
James  B.  Scott,  Solicitor  of  the  Department  of  State,  to  Hon. 
Wilbur  J.  Carr,  Chief  of  the  Consular  Bureau,  and  to  Mr.  S.  B. 
Crandall,  a  law  clerk  of  the  Department. 

As  this  book,  the  work  of  several  years  of  research,  goes  to 
press,  an  unlooked  for  and  a  very  happy  consummation  of  the 
author's  long  study  of  the  law  applicable  under  American  extra- 
territorial jurisdiction  is  reached  in  the  receipt  of  notice  that  the 
President  has  done  him  the  honor  to  designate  him  for  appoint- 
ment as  clerk  of  the  United  States  court  for  China. 

The  clerk  avails  himself  of  this  occasion  to  salute  his  col- 
leagues, officials  of  this  court,  His  Honor  the  Judge,  Lebbeus  R. 
Wilfley,  the  Attorney,  Adjutant-General  Drain,  and  Mr.  Bruce  R. 
Leonard,  marshal. 


CONTENTS 


CHAPTER  I 

HISTORIC  FORMS   OF  EXTRATERRITORIALITY 

PAGE 

Spread  of  the  principles  of  western  law  in  the  Orient....  1 
Characteristic    features    of    oriental    treaties — a    tariff    of 

customs   duties   and   extraterritoriality 2 

Capitulations   of   privileges   granted   to   the   North   Italian 

cities  by  Christian  rulers  in  the  Levant  in  the  middle 


ages 


2 


Important  additional  rights  in  the  capitulations  secured  from 

the  Saracen  and  Turkish  conquerors  of  the  Levant 4 

Principles   of   the   capitulations  obtained   from   Turkey   by 

France  aind  other  European  powers 7 

Capitulations  in  favor  of  France,  1535,  1740 8,10 

Capitulations  in  favor  of  England,  1675 12 

The  Russian  treaty  of  1783 13 

Consular  protective  powers  still  exercised  in  Turkey 14 

Adaptations  of  extraterritoriality  in  China  and  other  coun- 
tries of  the  Far  East 15 

Privileges   established   by   usage   aaid  under   most-favored- 
nation  clauses  of  treaties 16 


CHAPTEE  II 
THE  UNITED   STATES   ORIENTAL  TREATIES 

Treaties  with   the   Barbary   States,   Maskat,  Zanzibar   and 

Persia   1^ 

'Negotiation  of  the  treaty  of  1830  with  the  Ottoman  Porte. .       20 
Interpretation  of  Article  IV  of  the  Turkish  treaty  of  1830. .       23 
Resemblance   of   Article    IV    to    provisions   of   treaties    be- 
tween Turkey  and  other  powers 26 

Existing  practice  of  the  European  powers  with  respect  to 

criminal  jurisdiction  in  Turkey 26 


xiv  CONTENTS 

PACX 

Letters    of    American    consuls    describing    the    practice    of 

approximately  the  same  date  as  the  American  treaty..  28 

Later  treaties  with  Turkey 29 

Treaties  with  China  of  1844,  1858,  1880  and  1903 31 

Treaties  with  Japan  of  1854,  1857,  1858  and  1894 35 

Treaties    with    Siam,    Madagascar,    Korea,    Borneo,    Samoa 

and   Tonga    38 

Enumeration  of  the  treaties  in  force  in  1906 40 

CHAPTER  III 

ACTS  OF  CONGRESS  ESTABLISHING  THE  SYSTEM 

OF  CONSULAR  COURTS 

Summary  of  the  present  statutes 41-50 

Relation  of  the  statutes  to  the  treaties 42 

Specification  of  the  law  to  be  enforced  in  the  courts 43 

Nature    of    the    regulations    to    be    published    by    the 

ministers   43 

Conferring    of   judicial   authority    upon    incumbents   of 

certain  offices  45 

Settlement  of  certain  cases  without  resort  to  litigation . .  46 

Jurisdiction  of  a  consul  acting  alone 46 

His  jurisdiction  wheax  assisted  by  citizen  associates  on 

the  trial    47 

Jurisdiction  of  the  minister 48 

Capital  offenses  and  jurisdiction  of  them 48 

Former  appeal  to  the  circuit  court  in  California 49 

Appeals  to  the  United  States  court  for  China 50 

Authority  to  execute  and  manner  of  executing  judg- 
ments      50 

Official  opinions  relating  to  the  administration  of  the  system 

of  courts    50-63 

Effect   of    international    law    in    determining    consular 

judicial  authority   and  extraterritorial   privileges. .  50 

Significance  of  the  term  common  law 51 

Tendency    to   restrict    the    contents    of    regulations    to 

matters  of  procedure 54 

Relations  of  consular  judicial  officers  to  their  superiors  56 

Consular    immunities 59 

Relations  with  officials  of  the  local  government 59 

Consular  districts   60 

Qualification  as  associate 61 

Jurisdiction  of  the  minister 62 

Casies   which  have  bee.n  appealed  to   the  circuit  court 

in  California   63 


CONTENTS  XV 

PACK 

Constitutionality  of  the  jurisdiction 64-9 

Forbes  v.  Scannel,  1859 65 

In  re  Ross,  1890 66 

The  theory  of  agency 66 

Comparison  with  jurisdiction  in  the  territories 68 

Jurisdiction  under  the  power  to  make  treaties 68 

Principal  features  of  the   British  and   French   systems   of 

foreign  jurisdiction    69-74 

The  British  Foreign  Jurisdiction  Act  of  1890 70 

The  Orders  in  Council,  their  number  and  scope 71 

The  French  system  of  foreign  jurisdiction 72 

Origin  of  municipal  organization  of  foreign  settlementa 

and  of  the  office  of  assessor  under  French  law 73 

Appellate  courts  of  the  British  and  French  systems 74 

Further  development  of  the  American  system 74-7 

The  Davis-O'Connor  bill  of  1882 76 

The  Spooner-Denby  Act,  1906 77 


CHAPTEE  IV 

LEGAL  RIGHTS  UNDER  THE  JURISDICTION 

I— NATIONALITY 

The  scope  of  the  term  American  nationality 78 

Naturalized  citizens  of  Turkish  origin 79 

Restrictions  upon  Jews  in  Turkey 80 

Passports,  teskerehs,  travel  certificates 81 

Effect  of  vises  of  native  officials 82 

Registration    83 

Restriction  of  the  protege  system  in  the  Levant 83 

Dragomans  and  cavasises  84 

Chinese  employees  85 

Native  converts   86 

Joint-stock    companies 86 

Foreigners  employed  by  ma/tive  governments 86 

Foreigners  employed  as  seamen  on  American  ships 87 

Friendly  officers  toward  foreigners  are  non-jurdsdictional ....  88 

Results  of  abusing  extraterritorial  privileges 89 

Effect  of  prolonged  residence  abroad 90 

Expatriation    91 

II— THE  RULE  OF  DOMICIL;  MARRIAGE;  INHERITANCE 

Ori'ental  domicil  not  acquired 92 

Significance  of  retaining  American  domicil 92 

License  to  maary 93 


xvi  CONTENTS 

PACE 

Ccmisular  certification  of  maTriage 93 

Modes  of  solemnization 93 

Intermarriage  with  foreigners 94 

Divorce    95 

Inheritance  of  personal  property 95 

Succession  to  real  property  in  Turkey  ajnd  in  China 96 


III— PERSONS  ACCUSED   OP   CRIME 

Petty  ofCenisea   98 

Acta  named  in  the  treaties  as  imdictable 98 

Effect  of  local  police  regulatioms 98 

Political  offenses   100 

Non-neutral    acts 101 

Trading  in  contraband   101 

Procedure  in  the  trial  of  criminal  offenders 102 

Arrests    103 

Transfer  of  offenders  in  China. 104 

Consuls  have  no  power  to  extradite 104 

Deportation  under  the  British  system 104 

Extradition  treaties  with  Japan  and  Turkey 105 

Deportation  from   Japan 105 

Expulsion  or  exclusion  from  Turkey 106 

Place  of  serving  penalty 107 

Pardons    107 

Friendly  settlement  out  of  court 108 


IV— MISSIONARIES 

Importance  of  rights  of  missiionaries 108 

Non-religious  policy  of  the  United  States 110 

Religious  toleration  in  Turkey  under  the  treaty  of  Berlin. .  110 

Disallowance  of  certain  Turkish  regulations 110 

Rights  of  residence  in  the  interior Ill 

Use  of  dwelling  houses  as  churches  and  schools Ill 

Domiciliary    rights 112 

Turkish    school   regulations 112 

Licensing  of  graduates  in  medicine 113 

Turkish  regulations  upon  printing  and  circulating  books..  114 

Protection  of  native  teachers 115 

Indemnities  for  mission   property  destroyed 116 

Measures  of  protection  during  the  Armenian  disturbances . .  117 

Missions  in  Persia   118 

Religious  toleration  under  the  treaitiea  of  1858  with  China. .  118 


CONTENTS  xvii 

PAGE 

The  Burlingame  treaty  of  1868  with  China 119 

Special  grants  to  misaionaries 119 

The  Amerioan  treaty  of  1903 119 

Right  to  reside  in  the  interior 120 

Right  to  'acquire  property  in  the  interior 120 

Native   converts    121 

ResponJsibility  of  provincial  government  for  protection 121 

Mr.  Rockhill's  note 123 

Missions  in  Korea 124 

Missiomiis  in  Siam 125 

V— REAL  PROPERTY 

Land  concessions  in  the  open  ports  of  China 125 

Undesirable  methods  of  acquiring  land  in  the  interior 126 

Acquisition  by  speciail  grant 127 

The  American  treaty  of  1903 127 

The  lex  loci  applicable 128 

Former  Turkish  claims  of  jurisdiction  of  foreigners  holding 

real  property    129 

Improvement   of   Turkish   real   property   law 129 

Origin    of    the    extension    of    real    property    privileges    to 

foreigners,  1867  129 

Nature  of  the  real  estate  rescript  of  1867 130 

The  protocol  of  1874  between  the  United  States  and  Turkey  131 

Effect  of  the  protocol  on  jurisdiction 132 

Rights  of  expatriated  Turks 133 

Rights  of  Jews  in  Palestine 133 

Right  to  appeal  against  unjust  action  of  native  courts 134 

Real  property  privileges  in  Persia 134 


VI— TAXATION 

Turkish  import  and  export  customs  duties Ii54 

Prohibition  of  internal  taxes  on  foreign  goods 135 

Exemption  of  mission  schools  from  import  duties 136 

Turkish  real  estate  taxes 136 

Turkish   taxes  on   absentees 136 

The  Chinese  Imperial  Maritime  Customs 137 

Rules  of  1868  for  joint  investigation  of  customs  disputes 137 

Rules  of  1902 137 

Liabilities  under  the  treaties  of  1858  and  1903 138 

The  inlamd  tax,  likin 138 

Abolition   of  the  likin 139 

Tax  on  manufactures  by  foredgners 140 


xvili  CONTENTS 

VII— COMMERCIALi  PRIVILEGES 

PAGE 

Privilegea  specified  in  the   treaties 140 

Chimese  legislatiooi  in  the  form  of  regulations 141 

Joint-stock    companies 142 

Rights  of  manufacturing  in  China 142 

Railway  and  mining  concessions 143 

N<w>poMtioaI  American  interest  in  commercial  projects 144 

Effect  of  the  'open  door'  policy 144 

Monopolies  in  China 144 

Monopoliea   in  Turkey 145 

Foreign   joint-stock   companies   in   Turkey 145 

Postal  privilegea   145 

Collection  of  debts 146 

Assignment  of  claims  to  foreigners 146 

Finanioial  conditions 147 

Claims  against  China 148 

Mr.  Hay's  telegram  of  July  3,  1900 149 

Claims  against  Turkey  150 


CHAPTER  V 

THE     INTERNATIONAL     TRIBUNALS     OF     EGYPT; 
MIXED  CASES  IN  CHINA 

The  rule  of  the  defendiamt's  court 151 

Modifications  of  the  rule  in  Turkey 151 

The  mixed  tribunals  of  commerce 152 

The  intemiational  tribunals  of  Egypt 153-8 

History  of  their  establishment 154 

Activity  of  the  courts 155 

Analysis  of  the  Rdglement  d'organisation  judiciaire 156 

The  crisis  of  1880,  execution  of  judgments  against  Egypt  157 
The  crisis  of  1896,  control  of  the  'caisse  de  la  dette'..  157 
Question  of  permanence  of  the  courts  with  other  inter- 
national institutions  in  Egypt 158 

Jurisdiction  of  mixed  cases  in  China 159-60 

The  conference  of  1879  at  Peking 159 

Mr.  Seward's  propositions 160 

Existing  practice  in  China 160 

Cases    involving    foreigners    or    different    nationalities ....  160 
Settlement  of  mixed  cases  through  diplomatic  correspond- 
ence with  the  oriental  government 161 

Settlement  of  a  claim  against  Siam  by  arbitration 162 


CONTENTS  xlx 

CHAPTER  VI 
THE  FOREIGN  MUNICIPALITY  OF  SHANGHAI 

PAGE 

The  orgiajnizaticm  of  foreign  communities  in  China 163-7 

Macao  and  Hongkong 164 

The  foreign  settlement  at  Canton 165 

A  cooperative  policy  favored  by  the  United  States . . .     165 
Separate  comceissiona  at  Tientsin  and  Hamkow 166 

The  foreign  municipality  at  Shanghai 167-76 

Early  importance  of  Shanghai 167 

Municipal  organization  made   permanent  in  1854 168 

Description  of  the  municipal  organization  provided  in 

the  land  regulations  of  1866 168-9 

Legal  force  of  the  municipal   ordinances 170 

Limitations  upon  the  territorial  jurisdiction  of  China 

over  the  foreign  settlement 171 

The  Chinese  or  'mixed'  court 172 

The  Supao  case,  1903 172 

The  case  of  the  Japian-esie  spies,  1894 174 

The  desire  to  preserve  the  neutrality  of  Shanghai 175 

Jurisdiction  in  the  leased  areas  of  North  China 176-7 

Retention  of  the  sovereignty  of  China 176 

Jurisdiction  suspended  by  the  powers,  excepting  Japan    177 


CHAPTER  VII 

GROUNDS    FOR    RELINQUISHING    JURISDICTION 

Extension  of  European  sovereignty  leading  to  cessation  of 

jurisdiction   178 

Retention  of  some  native  law  in  European  colonies 178 

Effect  of  military  occupation 179 

Jurisdiction  in  European  protectorates 180 

Jurisdiction  in  newly  independent  states 182 

The  establishment  of  judicial  autonomy  in  Japan 183-8 

The  Bmbassy  of  1872  to  America  and  Europe 184 

The  period  of  building  the  modern  national  government  184 

The  conferences  of  1886  at  Tokio 185 

Favorable  attitude  of  the  United  'States 185 

The  n'egotiationis  with  Great  Britiaiin 186 

Efforts  of  Turkey  toward  abrogation 188 

'La  question  des  capitulations'   since  1856 188 

The   arbitration   awarding   to   Greece   the   retention   of 

extraterritoriality  after  the  war  of  1897  with  Turkey  18B 


XX 


CONTENTS 


FAGS 

Jmrisdiotion  in  the  Dajruubian  principalities 190 

Pres'ent  administration  at  justice  in  Turkey 191 

Receat     treaty     statemenits    of    grounds    of    relinquishing 

jurisdiction    192 

The  attitude  of  the   government  of   China   respecting   thB 

adoption  of  principles  of  western  law 193 

Relinquishment  is,  as  a  rule,  simultaneous  on  the  part  of 

the  leading  powers 194 

Improved    administration    of    jurisdiction     contributes    to 

niational  progress  in  the  Orient 195 


APPENDIX 

I     Extraterritorial  stipulations  of  United  States  treaties . .  197 

II    United  States  Revised  Statutes,  Sections  4083-4130 204 

III— 1— Reorganization    of    the    consular    service,    Act    of 

April  5,  1906 215 

2_United  States  court  for  China,  Act  of  June  30,  1906 . .  219 
3— Executive   Order,   June   27,   1906,   consular   service, 
regulations   governing  appointments   and   promo- 
tions      223 

IV— 1— Consular  court  regulations  for  China,  general,  1864.  226 

2 — Same,  summons  to  absentees,  1881 235 

3 — Same,  arrests  and  renditions,  1897 236 

V—1— Customs  rules  of  1868,  China 237 

2— Customs  Rule  I,  American-Chinese  treaty,  1903 240 

VI     The  municipal  government  of  Shanghai 241 

VII — 1 — Rules  of  procedure  for  the  Court  of  Consuls,  Shang- 
hai,   1882 244 

2— Rules  of  1869,  Mixed  Court  at  Shanghai 245 

3 — Same,  amendments  proposed  in  1906 247 

4— Rules  of  1902,  Mixed  Courts  of  the  International 

and  French  Settlements,  Shanghai 249 

VIII    Macdonald  v-  Anderson,  Tientsin,  1904 250 

IX    Consular  court  regulations  for  Turkey,  1862 254 

X    Portion  of  Lord  Cromer's  report  on  Egypt,  1906 267 

XI    Reference  tables: 

1 — Consular  court  regulations 270 

2— Opinions  of  Attorneys-General 271 

3 — Legations  and  consulates 272 

4 — Open  ports  of  China 273 

INDEX 274 


AMERICAN  CONSULAR  JURISDICTION 
IN  THE  ORIENT 


3n9ittihth  to  mp  toife 


AMERICAN  CONSULAR  JURISDICTION 
IN  THE  ORIENT 


AMERICAN 

CONSULAR  JURISDICTION 

IN  THE  ORIENT 


HISTORIC  FORMS   OF  EXTRATERRITORIALITY 


The  extension  of  European  domination  throughout  much   spread  of 

-  T  1      J?  the  prin- 

of  the  Orient  has,  in  our  own  day,  opened  a  prospect  oi  won-   cipies  of 

western 

derful  development  of  eastern  peoples  in  general  civilization,    law 
in  methods  of  government  necessary  for  protection  of  life   orient 
and  property,  and  in.  conceptions  of  justice  and  of  the  utility 
and  authority  of  courts  of  law. 

The  commercial  and  political  influence  of  the  western 
powers  has  spread  rapidly;  their  law  can  be  adopted  but 
slowly.  It  is  in  fact  the  survival  of  many  of  the  ancient 
traditions  and  customs  that  will  make  the  readjustment  to 
new  principles  peaceable  and  permanent.  Only  one  oriental 
nation,  the  Japanese,  is  thus  far  admitted  actually  to  have 
assimilated  enough  of  European  jurisprudence  to  entitle  its 
government  to  exercise  full  responsibility  for  the  protection 
of  foreigners  within  its  territory.  This  progress  of  Japan 
has  no  doubt  been  facilitated  by  its  maritime  situation  and 
its  more  general  intercourse  with  the  West.     Elsewhere  in 


Charac- 
teristic 
features 
of    orien- 
tal trea- 
ties—a 
tariff    or 
customs 
duties 
and   ex- 
traterri- 
toriality 


Capitu- 
lations 
granted 
to  the 
North 
Italian 
and  other 
cities 


2  CHARACTERISTIC    ORIENTAL    TREATIES 

the  Orient,  and  conspicuously  in  China,  national  pro- 
gress has  waited  upon  the  opening  of  the  interior  water- 
ways and  the  building  of  railroads.  Until  recent  years  it 
was  uncommon  to  find  foreigners  residing  or  trading  any- 
where back  from  the  seaboard.  In  the  open  ports,  as  at 
Shanghai,  there  were  cosmopolitan  communities  whose  mer- 
cantile interests  it  was  not  diflBcult  to  protect.  But  foreign 
enterprise  and  capital  now  radiate  long  distances  inland. 
How  to  regulate  the  enjoyment  of  the  new  franchises  and 
privileges  is  a  serious  problem.  And  what  is  true  of  China, 
with  its  great  rivers  open  to  traffic  and  its  extensive  rail- 
road concessions,  is  in  a  measure  true  also  of  Korea  and 
Siam,  Persia,  Turkey  and  Egypt. 

Heretofore  the  protection  and  regulation  afforded  in  the 
special  forms  of  treaties  in  the  oriental  states  has  sufficed. 
These  treaties  have  two  features  distinct  from  others:  first, 
they  stipulate  with  exceptional  detail  what  shall  be  the 
treatment  of  merchant  vessels  discharging  or  loading  car- 
goes, what  the  customs  examinations,  and  what  the  customs 
duties  upon  the  specified  imports  and  exports;  secondly — and 
for  this  they  are  distinguished  as  treaties  of  extraterri- 
toriality—they stipulate  in  general  that  the  persons  and 
property  of  citizens  or  subjects  of  the  western  state,  party 
to  the  treaty,  shall  be  exempt  from  the  jurisdiction  of  the 
courts  of  the  oriental  state;  that  their  domicil  shall  be  in- 
violable;  that,  except  in  the  act  of  committing  flagrant  crime, 
none  of  them  shall  be  arrested  by  native  officials;  that,  if  so 
arrested,  they  shall  be  given  over  to  their  consul  for  trial 
and  punishment;  and  that  the  consul  shall  exercise  juris- 
diction over  his  nationals,  with  the  right  to  require  the 
assistance  of  the  local  authorities  in  so  doing. 

During  the  two  or  three  centuries  before  America  was 
discovered,  the  North  Italian  cities  of  Venice,  Genoa,  Pisa 
and  Florence  and  other  western  cities  of  Marseilles  and 
Barcelona  obtained  from  the  Greek  Christian  rulers  at  Con- 
stantinople and  later  from  their  Mohammedan  conquerors, 
numerous  charters  for  the  protection  of  their  commerce  and 
for  the  exemption  from  the  local  government  of  their  mer- 


PRIVILEGES  OF  VENICE  AND  GENOA  3 

cantile  communities  residing  in  the  Levant.  These  charters, 
being  set  out  in  articles  or  capitula,  acquired  the  name 
capitulations,  a  term  now  generally  used  to  denote  treaties 
with  Turkey  prior  to  the  nineteenth  century. 

In  1199  the  Emperor  Alexius  III  issued  a  chrysobulum  Venice, 
of  privileges  conceded  to  the  Venetians.  Some  of  its 
capitula  provided  that  differences  in  commercial  matters 
arising  between  Greeks  and  Venetians  were  to  be  decided 
in  the  court  of  the  defendant,  but  only  upon  written  evi- 
dence of  contract,  and  the  plaintiff  was,  moreover,  required 
to  give  bond  to  answer  a  counterclaim.  Criminal  cases  in- 
volving persons  of  both  nations,  if  the  offense  had  caused  a 
popular  disturbance  or  if  a  Greek  official  had  been  impli- 
cated, were  to  be  tried  before  one  or  another  of  the  chief 
Greek  magistrates,  but  other  offenses,  including  those  com- 
mitted by  Greeks  within  the  quarter  of  the  city  set  aside  for 
the  residence  of  Venetians,  were  to  be  tried  and  punished 
under  Venetian  authority.^ 

A  century  later,  1304,  Emperor  Andronicus  II  granted  Genoa 
a  privilegium  aurea  bulla  nostra  munitwn,  declaring  the 
rights  and  jurisdiction  of  the  republic  of  Genoa  within  his 
realm.  There  was  to  be  a  separate  quarter,  a  fondicus, 
or  factory  for  the  Genoese  in  Galata  in  the  northern  part 
of  the  city  of  Constantinople.  Every  individual  who  was  in 
good  faith  a  Genoese  was  to  be  subject  only  to  the  juris- 
diction of  his  national  authorities,  and  if  it  became  neces- 
sary for  the  Greek  authorities  to  apprehend  a  Genoese 
offender  outside  of  the  Genoese  quarter,  they  were  at  once 
to  render  him  up  to  his  national  authorities  in  Galata. 
Likewise  Greeks  were  to  be  rendered  up  if  taken  by  the 
Genoese  authorities.     The  same  rules  were  to  apply  to  a 


1  Tafel  and  Thomas,  Urkunden  zur  alteren  Handels-  und  Staats- 
geschichte  der  Republik  Venedig,  Fontes  rerum  austriacarum,  Zweite 
Abteilung,  Diplomataria  et  Acta,  vol.  xii,  p.  273,  278.  In  another  place 
Professor  Thomas  notes  an  adaptation  of  Roman  law  procedure 
in  civil  actions,  as  provided  in  the  capitulations  between  Venice  and 
Byzantium  of  1199,  and  similarly  in  the  treaty  between  Venice  and 
France  of  1207;  Gelehrte  Anzeigen,  Bulletins,  Miinchen,  August  28,  1854, 
p.   19-28. 


MERCHANTS'  RIGHTS  UNDER  THE  CRUSADERS 


Privi- 
leges   In 

Syria 
granted 
by  Chris- 
tian 
princes 
during 
the  cru- 
sades 


Changes 
intro- 
duced 
under  the 
Saracen 
caliph- 
ates 


quarter  set  apart  for  Genoese  in  Smyrna,  and  similarly  to  all 
Genoese  wherever  they  'might  trade  on  the  mainland  or 
among  the  islands.  No  injury  to  a  Genoese  either  in  person 
or  property  was  to  remain  unpunished,  neither  was  a  wrong 
against  a  Greek  to  continue  without  penalty  or  satisfaction 
from  the  Genoese  consular  courts.  Expeditious  execution  of 
judgments  was  mutually  guaranteed.  Every  Greek  or  Latin, 
subject  or  not  to  the  emperor,  and  accused  of  crime  toward 
a  Genoese,  unless  the  Greek  or  Latin  should  be  of  a  nation  or 
class  holding  special  rights  under  treaty,  was  to  be  tried  and 
summarily  punished  wherever  in  the  empire  he  might  be 
taken;  and  upon  its  part  the  government  of  Genoa  was  in 
like  manner  to  deal  with  offending  Genoese.^ 

The  trade  with  eastern  nations  received  a  great  impulse 
at  the  time  of  the  crusades.  Eeligious  motives  hastened  the 
conflict,  but  the  demand  for  oriental  merchandise  then  sus- 
tained and  later  confirmed  the  European  states  in  prevent- 
ing the  various  Mohammedan  races  from  closing  or  domi- 
nating their  routes  of  commerce  to  and  from  the  East. 
When  the  maritime  cities  of  the  South  of  Europe  engaged  to 
carry  the  armies  of  crusaders  beyond  the  sea,  they  demanded 
in  return  large  commercial  privileges  in  the  conquered  terri- 
tories, the  island  of  Cyprus  and  the  coasts  of  Syria.  The 
consuls  of  the  city  of  Marseilles,  located  at  Tyre  and  Acre, 
though  obliged  to  take  oaths  of  fidelity  to  the  Christian 
princes,  were  granted  jurisdiction  over  their  fellow-citizens 
excepting  for  felonious  crimes.  The  oath  of  fidelity  of 
the  Venetian  consul  at  Tyre  bound  him  to  render  justice  ac- 
cording to  the  usages  and  customs  of  the  port,  and  if  these 
were  indeterminate,  then  upon  principles  of  natural  justice. 

Elsewhere  beyond  the  Mediterranean,  in  Egypt  and  along 
the  Barbary  coasts,  whither  an  earlier  crusade  of  Moslems 
against  Christian  Europe  had  made  its  way,  and  where,  until 
the  rise  of  the  Turks,  lay  the  very  center  of  Arabian  civiliza- 
tion, the  pursuit  of  commerce  had  also  led  the  cities  of  Italy 


1  Historiae  patriae  monumenta,  Liber  iurium  reipublicae  Genuensis, 
vol.  11.,  p.  440. 


UNDER  THE  SARACEN  CALIPHS  5 

to  make  their  consular  establishments.  Tolerated  only  for 
the  sake  of  a  lucrative  trade,  the  European  merchants  were, 
as  unbelievers,  held  to  be  vile  enemies.  They  ventured 
among  a  people  fired  with  the  most  terrible  religious  hatred 
and  always  bent  upon  making  them  a  prey.  They  were  for- 
bidden, on  penalty  of  confiscation  of  goods,  of  slavery  and  of 
death,  to  deal  with  the  Moslems;  yet  from  the  twelfth  cen- 
tury the  city  republics,  Pisa,  Venice,  Genoa  and  Florence, 
traded  extensively  at  both  Tunis  and  Alexandria. 

The  capitulations  secured  by  Pisa  in  1154  to  protect  her  Pisa, 
community  at  Alexandria  contained  the  rule  that  no  citizen  Florence, 
of  Pisa  should  be  held  by  the  government  of  Egypt  for  the 
wrong-doing  or  the  debt  of  another  citizen,  and  that  no 
Pisan  ship  should  be  detained  in  port  to  exact  payment  of 
a  debt.  Here  are  new  features,  not  found  in  the  capitula- 
tions obtained  from  the  Greek  Christian  emperors  of  Con- 
stantinople. Both  import  and  export  duties  are  fixed  at  ten 
and  twelve  per  cent.,  to  be  collected  by  Egyptian  officials, 
and  the  officials  are  to  be  restrained  from  extortions.  The 
capitulations  are  sealed  under  vows  of  their  great  sanctity 
and  permanence,  yet  they  are  renewed  frequently,  almost 
from  year  to  year  and  upon  the  payment  of  handsome  trib- 
ute. Later  capitulations,  particularly  those  in  force  at 
Tunis,  introduced  the  extreme  rule  of  holding  the  consul  re- 
sponsible for  the  wrong-doing  of  his  fellow-citizens,  and  the 
capitulations  of  1445  respecting  rights  of  Florentines  and 
Pisans  at  Tunis  placed  all  civil  and  commercial  causes  aris- 
ing between  Florentines,  or  between  other  Europeans  and 
Florentines,  under  the  jurisdiction  of  the  chief  Tunisian 
customs  official.  ^ 

More  marked  innovations  in  the  principles  of  the  capitu-  changes 

rGSultincT 

lations  resulted  from  the  overturning  of  the  Saracen  caliph-  from 

Turkish 

ate  in  Egypt  by  a  less  civilized  and  extremely  fanatic  race  con- 
of  Mohammedans,  namely,  the  Turks.    The  Turkish  hordes, 
after   spreading   destruction   in    Syria   and   Egypt,   turned 


quests 


^  Amari,  I  diplomi  arabi  del  archivio  florentino,  Florence,  1863-7,  was 
the  first  work  to  demonstrate  the  importance  of  the  capitulations  se- 
cured by  the  Italian  city  republics  in  the  Levant. 


6 


EARLY   TURKISH  INTOLERANICE 


Hazards 
of    trade 
In   the 
Levant 


northward  into  Asia  Minor.  They  overran  several  ancient 
states,  despoiled  the  Byzantine  empire,  captured  Constanti- 
nople, and,  following  up  the  Danube,  thrust  a  conquering 
arm  far  into  Europe.  With  the  sword  raised  against  all 
Christian  nations  they  rushed  onward  unchecked  by  any 
such  crushing  blows  as  their  fellow-religionists  had  met 
with  when  they  invaded  Europe  by  way  of  Spain  and 
France  seven  hundred  years  before.  But  their  advance  was 
restrained  both  by  an  appreciation  of  their  greatest  prize, 
the  imperial  city,  and  by  the  serious  difficulties  of  keeping 
in  subjection  the  ancient  Christian  nations  dwelling  in  the 
regions  reaching  from  eastern  Armenia  across  to  the  city 
itself,  center  of  the  Greek  church.  Upon  every  side  the 
Turks  were  surrounded  by  a  world  at  enmity  with  Islam,  a 
dar-el-harhi,  as  their  religious  hatred  described  it;  and  if 
there  was  occasional  respite  from  this  enmity,  the  onslaught 
was  more  furious  in  times  of  religious  fervor.^ 

The  Sultans  regarded  the  capitulations  only  as  temporary 
truces.  Merchants  from  the  wealthy  cities  of  Venice  and 
Genoa,  pleading  forbearance  and  favor,  sought  to  preserve 
some  of  the  great  commerce  of  Byzantium,  what  was  then 
the  world's  commerce  between  the  East  and  the  West.  But 
to  the  Moslem  a  Christian's  property  was  the  property  of  no 
one;  a  European  merchant  was  a  villain,  a  ghiaonr  or  'dog.' 
Italian  and  French  ships  were  everywhere  the  prey  of 
pirates:  their  seamen  were  taken  as  slaves,  the  merchants 
themselves,  usually  looking  after  the  transportation  of  their 
wares  in  person,  were  seized  upon  for  ransom,  and  their 
goods  were  liberated  only  when  they  made  enormous  gifts. 

The  foreign  consuls  were  long  regarded  as  mere  hostages 
responsible  for  whatever  charges  might  be  brought  against 
other  Christians.  Frequently  they  were  thrown  into  prison. 
The  ambassadors  of  western  states,  'earnestly  imploring' 
the  Sublime  Porte,  came  bearing  precious  gifts,  les  presens 
acoutumees,' — so  read  the  English  capitulations  of  1675.   In 

» von  Hammer,  Geschichte  des  Osmanischen  Reiches,  books  13-20, 
Pesth,  1827;  Pears,  The  Destruction  of  the  Greek  Empire  and  the 
Story'  of  the  Capture  of  Constantinople  by  the  Turks,  London,  1903, 
chap.   XX. 


PRIN'OrPLEIS  OF   THE  CAPITULATIONS  7 

fact  the  earlier  capitulations  ordinarily  opened  with  adulation  Aduia- 
of  His  Majesty  the  Sultan.  The  same  English  capitulations  the  sui- 
say:  "Moy  qui  suis  le  puissant  Seigneur  des  Seigneurs  du 
monde,  dont  le  nom  est  formidable  sur  Terra,  Distributeur 
de  toutes  les  Couronnes  de  FUnivers,  Sultan  Mahomet  Han 
.  .  .  cette  Haute  Porte  Imperiale  qui  est  le  refuge  des 
Princes  du  monde,  et  la  retraite  des  Eois  de  tout  I'Univers/^ 
Similarly  extravagant  language  appears  in  the  French  capit- 
ulations of  1740;  but  the  Russian  capitulations  of  1783 
have  only  the  expression  'la  sublime  Porte/  and  the  Ameri- 
can treaty  of  1830  uses  the  same  form. 

Contempt  like  this  for  the  Christian  powers  was  also  long 
fostered  among  the  Barbary  rulers  by  the  payment  of  tri- 
butes and  ranscms.  The  United  States  was  the  first  to  put 
an  end  to  it  as  well  as  to  the  piracies  of  the  western  Mediter- 
ranean ;  but  clearing  the  sea  of  pirates  by  force  of  arms  was 
more  readily  accomplished  than  causing  the  Mohammedan 
rulers  to  treat  western  merchants  and  missionaries  with  jus- 
tice when  they  took  up  their  residence  in  Mohammedan 
countries. 

In  spite  of  the  hostility  and  contempt  displayed  by  the  The  prin- 
governing  class  of  the  principal  Mohammedan  state  toward  capituia- 
Christians  from  the  fifteenth  to  the  end  of  the  eighteenth  be  exam- 
century,  it  was  in  this  period  that  the  powers  of  western 
Europe  secured  the  series  of  capitulations  recognizing  their 
extraterritorial  rights.     Although  the  protection  and  juris- 
diction exercised  by  European  consuls  in  Turkey  in  our  own 
times    is    not    fundamentally    different    from    the    system 
developed  by  the  Italian  city  republics  at  Byzantium,  the 
principal  terms  of  the  modern  treaties  are  derived  from  the 
more  important  of  the  later  capitulations,  such  as  those  in 
favor  of  France  of  1535,  1604,  1673  and  1740;  of  England 
of  1583  and  1675;  of  Holland  of  1680;  of  Austria  of  1718; 
and  of  Russia  of  1783. 

The  first  western  power  to  succeed  to  the  commercial  pres-   Privi- 
tige  of  the  Italian  cities  was  France.    At  the  epoch  of  the   cured  by 
crusades  close  relations  existed  between  the  French  crown   seiiies  in 
and  the  Christian  principalities  of  Syria.    When  these  had 


8  RIGHTS  OF  MARSEILLES  IN'  EGYPT 

fallen  before  the  forces  of  the  great  Saladin,  he  required  of 
the  city  of  Pisa  that  the  commercial  privileges  enjoyed  by 
the  Pisans  in  Egypt  should  in  no  wise  be  shared  with  the 
merchants  of  France.  But  the  cities  of  Marseilles  and  Barce- 
lona, cooperating  in  commercial  enterprises  along  the  north 
coast  of  Africa,  made  themselves,  in  the  course  of  the  next 
century,  foremost  in  the  trade  with  Egypt,  so  that  other 
European  nations  availed  themselves  of  the  protection  of 
the  French  flag.  Here  is  the  origin  of  the  predominating 
influence  of  France  in  the  Levant,  a  predominance  at  its 
height  from  the  sixteenth  to  the  nineteenth  centuries,  in- 
dicated in  the  treaties  and  usages  and  in  common  parlance 
by  the  designation  of  Europeans  and  Americans  of  what- 
ever nationality  as  Franks.  The  French  commerce  in  the 
Levant,  at  first  controlled  by  merchant  associations  and  by 
the  municipal  government  of  Marseilles  and  other  southern 
cities,  did  not  come  fully  under  royal  control  until  the  seven- 
teenth century  and  the  time  of  Colbert,  but  long  before  then 
it  was  placed  under  royal  protection. 
Capitu-  Under  Francis  I  this  commerce  led  to  the  adoption  of  a 

tevo^^o?  foreign  policy  which  may  be  counted  the  first  landmark  in 
Ss"*^^'  the  development  of  the  famous  'eastern  question.'  The 
Turks  had  made  war  upon  Austria,  they  were  overrunning 
Hungary  and  they  coveted  the  city  of  IlTaples.  Being  jealous 
of  the  power  of  the  Emperor  Charles  V,  the  French  king 
cast  his  influence  on  the  side  of  the  Ottoman  Porte.  In 
recognition  of  this  friendly  assistance  the  Sultan  Suleiman 
entered  into  a  commercial  treaty  with  Francis  I,  a  treaty 
dravm  as  modern  treaties  are  drawn  and  signed  by  the  pleni- 
potentiaries of  the  two  states.  This  treaty,  which  was  con- 
cluded in  1535,  granted  to  France  privileges  similar  to  those 
guaranteed  to  the  Italian  cities  in  the  earlier  capitulations. 
It  is,  indeed,  the  earliest  of  the  capitulations  obtained  by  the 
great  powers  of  Europe  from  the  Ottoman  Porte. 

The  capitulations  of  1535  were  to  remain  in  force  during 
the  lives  of  the  two  sovereigns.  The  subjects  of  either  might 
travel,  trade  or  reside  anywhere  within  the  territory  of  the 
other.    The  French  consuls  at  Constantinople  and  elsewhere 


FRANCO-TURKISH   TREATY   1535  9 

in  Turkey  were  to  be  furnished  with  evidence  of  their  offi-  ^^J*"  ^^^ 
cial  standing,  and  were  to  have  the  same  powers  and  privi-  ^^^^^^  ^° 
leges  that  French  consuls  had  exercised  at  Alexandria.  No  1^35 
Turkish  judge,  cadi,  souhachi,ov  other  Turkish  official  was 
to  hear,  judge  or  decide  legal  actions,  either  civil  or  criminal, 
of  whatever  nature,  between  subjects  of  the  King  of  France, 
even  if  they  should  ask  it,  and  if  a  Turkish  judge  should 
render  a  decision,  his  judgment  was  to  be  of  no  effect.  If  the 
consul  should  request  assistance  in  the  enforcement  of  his 
decisions,  it  was  to  be  given.  Mixed  civil  cases  were  to  be 
tried  in  Turkish  courts,  but  only  in  the  presence  of  the 
French  consular  dragoman  and  upon  written  evidence  of  con- 
tract, sealed  before  a  notary  public.  The  subjects  of  France 
might  not  be  summoned,  molested  or  tried  without  the  writ- 
ten consent  of  a  French  consular  officer.  Mixed  criminal 
cases  were  not  to  be  tried  by  the  ordinary  officers  of  the  law 
among  the  Turks,  but  were  at  once  to  be  tried  before  the 
principal  state  official  of  the  ■^ultan  or  his  substitute,  and  be- 
fore him  the  evidence  of  the  French  witnesses  was  to  be 
heard  upon  equal  terms  with  the  evidence  of  Turks.  Under 
no  circumstances  could  a  difference  of  religion  be  made  the 
cause  for  arrest  or  trial  before  a  Turkish  judge.  No  one  but 
a  party  to  a  contract  and  his  surety  could  be  held  responsible 
for  its  fulfilment.  Subsequent  articles  contain  prohibitions 
against  the  taking  of  slaves  and  the  aidingt  or*  abetting  of 
pirates,  as  well  as  provisions  for  the  protection  of  property 
in  shipwreck,  the  transfer  of  inherited  property  through  the 
consul,  and  freedom  from  all  taxes  except  customs,  unless 
the  period  of  residence  in  Turkey  should  extend  beyond  ten 
years.  Finally,  it  was  agreed  that  the  Pope,  the  King  of 
England  and  the  King  of  Scotland  might  enter  into  the 
same  treaty  by  exchange  of  ratifications;  and  the  treaty  was 
to  be  confirmed  in  due  form  and  published  throughout  the 
jurisdictions  of  the  two  sovereigns.^ 

1  De  Testa,    Recueil  des   traitfis   de   la  Porte   Ottomane,    Paris,    1874, 
vol.  1,  p.  15. 


10 


INCREASING  FRENCH  INFLUENCE 


France, 
1B69,  1604 
and  1673 


Capitula- 
tions of 
1740 

granted 
to 
France 


Many  repetitions  and  a  few  variations  occur  in  the  French 
capitulations  of  the  next  two  centuries.  Those  of  1569 
stipulated  that  in  mixed  cases  the  French  consul  should 
promptly  send  his  dragoman  to  the  court  so  that  the  trial 
should  not  be  delayed  or  frustrated.  Those  of  1604  placed 
under  French  jurisdiction  the  Christian  subjects  of  the  Sul- 
tan who  were  solely  engaged  in  foreign  trade,  and  gave  the 
trial  and  punishment  of  pirates,  even  Turks,  into  the  hands 
of  the  French,  if  originally  taken  by  the  French.^  Those  of 
1673,  complaining  that  the  Turkish  courts  had  not  received 
evidence  of  Christian  witnesses  and  had  given  judgment 
upon  contracts  not  in  writing,  thus  assisting  in  the  extortion 
of  money,  stipulated  that  suits  for  four  thousand  aspers  or 
more  should  be  brought  before  the  Sublime  Porte.^ 

The  next  important  capitulations  in  favor  of  France,  those 
of  1740,  were  secured  after  the  King  of  France  had  rendered 
assistance  to  the  Sultan  of  Turkey  in  another  grave  crisis  in 
eastern  affairs.  Territory  bordering  upon  the  Black  Sea  had 
been  acquired  by  Eussia,  and,  upon  pretext  that  the  Russian 
people  inhabiting  the  valleys  of  the  Don  and  Dnieper  could 
in  no  other  way  be  protected  from  Tartar  raids,  the  Czar 
evidently  intended  to  acquire  more  territory  by  conquest. 
Russia  found  an  ally  in  Austria,  whose  safety  necessitated 
crowding  back  the  Turks  along  the  Danube.  The  war  was 
most  fierce.  The  Austrians  were  repulsed  and  their  city  of 
Belgrade  reduced.  Russia,  however,  succeeded  in  occupying 
territory  about  the  Sea  of  Azof.  France  intervened.  Then, 
because  of  the  value  of  this  intervention,  the  Ottoman  Porte 
established  still  more  firmly  the  commercial  prestige  of  the 
French  in  his  dominions.  A  very  skilful  diplomat,  Ville- 
neuve,  secured  the  capitulations  of  1740,  the  most  complete 
and  explicit  of  all  the  capitulations,  a  treaty  whose  terms 
are  followed  in  other  leading  treaties  and  upon  which  rests 
the  modern  law  of  France  and  in  some  measure  the  law  of 


>  De  Testa,  Trait^s  de  la  Porte  Ottomane,  vol.  i,  p.  141. 

>  Noradounghian,    Recueil   d'actes  internationaux  de  I'Empire  Otto- 
man,  Paris,  1897,  vol.   i,  p.  136. 


IMPORTANT  CAPITULATIONS  OF  1740  H 

other  governments  regulating  the  administration  of  consular 
courts  in  the  Levant. 

The  capitulations  of  1740  consist  of  eighty-five  articles.   Addi- 

.   .  T  p  n     J?         T         tional 

At  least  half  of  them  are  repetitions  word  lor  word  oi  earner  rights 

,  .    .  ■     1     •  •  under 

capitulations;  several  provisions  are  repeated  m  various  capituia- 
forms  as  if  to  leave  no  mistake  that  such  and  such  privi-  i740 
leges  were  granted;  other  stipulations  are  entirely  new. 
The  number  of  dragomans  and  interpreters  of  the  French 
ambassador  and  consuls  was  to  be  limited.  Turkish  subjects 
appointed  to  act  as  French  consuls  could  not  thereby  exempt 
themselves  from  Turkish  jurisdiction.  If  a  Frank  should  of 
his  own  will  become  a  convert  to  Mohammedanism,  he  would 
be  required  to  give  notice  to  his  consul  and  by  this  act  he 
would  relinquish  his  nationality.  All  Franks  were  to  carry 
passports.  The  Christian  religious  societies  established  at 
the  holy  places  were  not.  to  be  molested  and  were  to  have 
their  own  independent  jurisdiction.  Mixed  cases  between 
aliens  were  not  to  be  heard  before  Turkish  courts  unless 
both  parties  were  willing.  The  expenses  of  mixed  cases  in- 
volving both  Franks  and  Turks  were  fixed  at  two  per  cent, 
of  the  value  recovered  in  the  action.  Cases  once  decided 
were  not  to  be  reopened  or  heard  upon  appeal  unless  the 
consul  consented. 

The  fifteenth  article  is  of  the  following  purport:  If  a  criminal 
crime  had  been  committed  by  one  French  subject  upon  an-  tion 
other,  the  trial  was  to  be  held  before  the  French  minister  or 
consul,  according  to  their  national  law,  and  without  the 
interference  of  any  Turkish  official.  And  the  sixty-fifth 
article  provided  that  if  a  Frenchman  or  protege  of  France 
committed  a  crime  to  which  Turkish  law  was  applicable,  the 
Turkish  judges  or  other  officials  should  not  proceed  in  the 
matter  except  in  the  presence  of  the  French  ambassador  or 
consuls  or  their  substitutes.^ 

The  earliest  of  the  capitulations  secured  by  England  were  Eng- 
those  of  1580.     The  French  opposed  the  granting  of  these  early  ne- 
privileges  and  succeeded  in  making  them  of  no  effect,  so  that  «ons' 

*  Ffiraud-Giraud,    De    la   juridiction    frangaise    dans    les    4chelles    du 
Levant  et  de  Barbarie,  Paris,  1871,  vol.  i,  p.  113. 


12  RIGHTS  SECURED  BY  ENGLAND 

the  English  remained  as  in  the  past  under  French  pro- 
tection. But  in  the  seventeenth  century,  when,  on  account 
of  a  conflicting  policy  toward  Austria,  the  French  influence 
with  the  Porte  waned,  the  English  obtained  independent 
privileges;  and  these  capitulations  of  1675,  renewed  in  1809, 
remain  the  basis  of  British  foreign  jurisdiction  in  Turkey 
to-day. 
What  the  The  English  secured  for  themselves  and  for  the  Hol- 
lations  of  landers  liberty  to  trade  and  reside  anywhere  in  the  Turkish 

1675   se- 

cured  for  dominions,  including  Egypt  and  the  Barbary  States.  ^    The 
lish  earlier   capitulations   in  favor   of   the   Venetians   and   the 

French  were  renewed  and  made  applicable  to  the  English. 
Freedom  from  the  capitation  tax  was  guaranteed.  Consuls 
might  be  located  wherever  the  trade  demanded  and  they 
were  in  no  particular  to  be  subject  to  Turkish  jurisdiction 
nor  were  their  houses  to  be  placed  under  seal  of  court.  The 
number  of  interpreters  to  be  employed  was  limited,  and  no 
interpreter  was  to  be  arrested  or  tried  by  Turkish  author- 
ities. Disputes  of  whatever  nature  in  which  Englishmen 
alone  were  concerned  were  justiciable  solely  by  the  English 
authorities.  No  Englishman  could  be  summoned  to  appear 
in  a  civil  action  in  a  Turkish  court  except  upon  written  con- 
sent of  his  consul,  and  the  court  could  not  proceed  to  trial 
without  the  presence  of  a  consular  officer.  No  evidence 
could  be  received  in  such  an  action  contrary  to  the  ex- 
pressions of  a  contract  under  the  seal  of  a  cadi  or  notary.  No 
Englishman  could  be  held  for  the  debt  of  another  except 
upon  written  evidence  of  his  being  a  surety.  No  judgments, 
past  or  future,  made  contrary  to  the  capitulations  were  to 
have  force.  A  crime  committed  by  an  Englishman,  if  it 
amounted  to  a  felony,  was  to  be  tried  in  a  Turkish  court,  but 
only  in  the  presence  of  the  consular  dragoman.  Englishmen 
who  had  been  wrongfully  tried  and  imprisoned  were  to  be 
released.    Under  no  pretext  were  Englishmen  to  be  seized 

1  The  Netherlanders  obtained  capitulations  for  themselves  in 
1612,  yet  remained  under  either  French  or  English  protection  un- 
til 1741,  when  by  their  own  law,  they  were  forbidden  to  take  pro- 
tection under  any  other  flag  than  that  of  the  Netherlands;  Mar- 
tens, Das  Consularwesen  und  lie  Consularjurisdictlon  Im  Orient, 
Berlin.  1874,  p.  229. 


AUSTRIAN  AND  RUSSIAN  RIGHTS  13 

and  held  in  slavery.  English  ships  were  not  to  be  molested 
on  the  ground  of  carrying  goods  of  an  enemy,  a  pretext 
under  which  piracy  had  been  flagrant.  Some  of  the  pro- 
visions, particularly  those  referring  to  the  retention  of 
ancient  usages,  were  repeated  many  times,  and  the  reasons 
for  the  frequent  renewal  of  and  additions  to  the  capitula- 
tions were  inserted.  ^ 

Taking  up  the  capitulations  obtained  by  Austria  and  Rus-  Austrian 
sia,  we  find  several  differences  from  the  French  and  English  vene- 
instruments.  These  differences  might  be  expected  in  view  privileges 
of  the  contiguity  of  the  countries  and  the  frequent  wars  by 
which  Turkish  territory  had  been  lost  either  to  Russia  or  to 
states  newly  set  up  in  the  valley  of  the  Danube.  Of  all 
questions  none  would  seem  more  important  than  that  of 
determining  nationality,  yet  the  Austrian  capitulations  of 
1718  and  the  Russian  of  1783  are  silent  upon  the  subject. 
Notwithstanding  Austria's  suzerainty  over  Venice,  the 
Venetians  kept  their  ancient  privileges  under  their  own 
capitulations  until  1866,  and  as  of  old  the  chief  Venetian 
officer  or  consul  bore  the  distinctive  title  of  bailo.  The  con- 
suls of  Austria,  unless  by  special  arrangement,  were  to  be 
stationed  only  where  consuls  of  other  states  were  located. 
Turkey  was  to  possess  the  right  of  having  shabbenders  or 
consuls  in  Austria,  but  these  consuls  were  not  invested  with 
special  judicial  functions.  Austrians  in  Turkey  were  not 
under  any  circumstances  to  be  put  in  prison  except  by  order 
of  their  own  national  authorities. 

The  difficulties  between  Turkey  and  Russia,  originating  in  The  rus- 
the  Tartar  disturbances  north  of  the  Black  Sea,  were  in-  treaty  of 

1783 

creased  by  the  fact  that  Russia  had  become  the  protector  of 
the  Greek  church,  whose  metropolitan  had  formerly  been 
established  at  Constantinople,  and  whose  adherents  in  and 
about  that  city  were  very  numerous.  The  initiative  in  the 
cultivation  of  closer  commercial  relations  was  taken  by  Rus- 

1  Dumont,  Corps  universel  diplomatique  du  droit  des  gens,  Amster- 
dam, 1781  and  later,  vol.  vii.,  pt.  1,  p.  297,  gives  a  text  in  French 
much  longer  than  that  in  English  given  in  the  British  and  Foreign 
State  Papers,  vol.  1,  pt.  1,  p.  747. 


14 


SURVIVAL  OF  RIGHTS  IN  TURKEY 


Survival 
of    con- 
sular 
jurisdic- 
tion   in 
Turkey 


sia.  Turkey  not  only  refused  to  send  an  ambassador  to  Mos- 
cow, but  when  first  consenting  to  trade  with  the  Kussians, 
declined  to  grant  them  specific  privileges.  Until  late  in  the 
eighteenth  century  the  Eussians  were  not  allowed  to  trade 
along  the  coasts  of  the  Black  Sea,  except  in  Turkish  ships. 
The  treaty  of  peace  of  Kutschuk  Kainardji  of  1774  granted 
to  Eussia  all  the  privileges  of  trade  enjoyed  by  the  French 
and  English  in  the  Turkish  dominions.  The  capitulations 
of  1783  are  notable  for  their  very  clear  statement  of  the 
customary  extraterritorial  privileges  of  Europeans  in  Tur- 
key. To  mention  but  one  distinctive  feature:  in 
order  that  Ottoman  subjects  in  the  pursuit  of  their  com- 
merce might  not  leave  Turkey  without  the  knowledge  of  the 
Ottoman  government,  they  were  not  to  receive  permits  from 
the  Eussian  legation  to  go  to  Eussia  except  upon  formal  re- 
quest from  the  Porte;  reciprocally,  Eussian  subjects  were 
not  to  enter  the  Turkish  dominions  without  the  necessary 
Turkish  firmans.  Nothing  was  said  of  stationing  Turkish 
consuls  in  Eussia,  but  Eussia  guaranteed  full  and  equal 
justice  to  Ottoman  subjects  before  the  courts  of  law. 

From  the  beginning  of  the  nineteenth  century  the  term 
capitulation  was  less  frequently  applied  to  the  international 
agreements  to  which  Turkey  was  one  of  the  contracting 
parties  and  the  term  treaty  took  the  place  of  the  term  capi- 
tulation. The  treaties  of  the  third  decade  of  that  century, 
among  them  the  treaty  with  the  United  States,  are  not 
spoken  of  as  capitulations,  although  they  preserve  the  essen- 
tial character  of  the  capitulations.  Whether  the  change  of 
terminology  indicates  a  new  conception  of  these  arrange- 
ments as  bilateral  rather  than  unilateral  is  not  of  practical 
significance.  The  fact  is  that  consular  protection  and  juris- 
diction in  Turkey  is  fundamentally  the  same  as  it  was  in  the 
fifteenth  century.  For  all  the  intercourse  of  Turks  with 
western  Europeans  and  for  all  the  international  relations 
into  which  the  Turkish  government  has  been  admitted  there 
has  been  no  development  of  judicial  institutions,  no  build- 
ing up  of  governmental  protective  responsibility  which  other 
powers  have  regarded  as  sufficient  to  warrant  them  in  with- 


EXTRATERRITORIALITY   IN  CHINA  15 

drawing  their  jurisdiction;  and  there  seems  to  be  no  im-me- 
diate  prospect  of  progress  in  Turkey  that  may  bring  about 
such  a  concession  of  Turkisli  judicial  autonomy.  ^ 

Turning  to  extraterritorality  in  the  countries  of  Eastern  Adapta- 
Asia,   it   is   first   to   be    observed   that   the   whole   history   extra- 
of   the  jurisdiction   is   comprised  within   the   last   seventy    toriauty 
years.    Moreover,  the  religions  of  the  Tar  East  have  had  no    " 
direct  bearing  upon  the  rights  of  foreigners  sojourning  in 
those  countries.     Corresponding  to  the  nominal  suzerainty 
of  the  Ottoman  Porte  over  the  Barbary  States  and  Egypt, 
there   was   once   the   question   of   Chinese   suzerainty   over 
Korea  to  the  north  and  Annam  to  the  south;  and  the  ques- 
tion of  the  control  of  the  Porte  over  the  local  governors  in 
Turkey  has  been  paralleled  in  the  apparently  ill-defined 
authority  of  the  provincial  taotais  in  China. 

The  territorial  sovereignty  of  China  was  not  impaired 
until  the  Opium  War,  which  ended  in  1842,  and  the  real 
significance  of  the  grant  of  extraterritoriality  then  made 
was  not  felt  by  China  until  the  treaties  of  1858. 

Between  the  treaties  with  Turkey  and  those  with  China  Distinct 

•'  .  .  ,      features 

there  is  this  fundamental  difference,  that  the  treaties  with   of  priv-. 

lieges     in 

China  contain  no  reference  to  privileges  resting  upon  cus-  cwna 
toms  and  usages.  With  the  exception  of  restricted  privi- 
leges enjoyed  by  the  Eussian  caravans  in  extreme  north- 
western China  many  years  before  the  western  European 
treaties  with  China  were  made,  these  treaties  marked  the 
very  beginning  of  extraterritorial  jurisdiction  in  that  country. 
The  earlier  practice  had,  in  fact,  been  just  the  opposite  of 
that  stipulated  in  the  treaties.  But  the  customary  rights  of 
foreigners  in  Turkey  are  so  considerable  and  of  so  long 
standing  that  no  attempt  to  reduce  all  of  them  to  explicit 
written  statement  has  been  made.  And  yet,  if  the  juris- 
diction in  China  continues  for  a  long  period,  a  group  of  cus- 
toms will  inevitably  grow  up  and  in  time  be  claimed  as  rights 
additional  to  those  stipulated  in  the  treaties." 

1  Odysseus  (pseud.).  Turkey  in  Europe,  London,  1900,  chap.  iii.  iv,  v. 
•  "With  reference  to  the  growth  of  usages  in  the  exercise  of  consular 


16 


USAGES,  MOST-FAVORED-NATION 


Privi- 
leges es- 
tablished 
by   usage 


Most- 
favored- 
natlon 
treat- 
ment 


Another  fundamental  distinction  is  that  in  the  Moham- 
medan states  foreigners  of  whatever  Christian  nation, 
whether  subjects  of  treaty  powers  or  not,  are  by  immemorial 
custom  permitted  to  enjoy  extraterritorial  privileges 
through  the  system  of  consular  protection,  while  in  the 
states  of  the  Far  East,  especially  as  these  privileges  are 
grounded  upon  differences  more  of  government  than  of 
religion,  no  such  system  has  become  established. 

Whether  the  ancient  usages,  so  frequently  mentioned  and 
confirmed  in  the  Turkish  capitulations,  included  essential 
rights,  not  described  in  the  texts  of  earlier  documents,  can- 
not be  shown.  In  fact  there  is  much  difference  in  the  pro- 
visions of  the  capitulations  and  even  some  divergence  upon 
important  points.  But  the  perpetuation  of  ancient  usages 
plainly  implies  that  no  sudden  and  arbitrary  act  of  a  native 
official,  overturning  a  long  recognized  right  of  aliens  in 
Turkey,  shall  be  tolerated;  neither  shall  an  alien  or  his  con- 
sul assume  privileges  beyond  those  customary.  Consular 
jurisdiction  in  the  Levant  is  the  result  of  an  evolution  per- 
sisting through  many  centuries,  and  its  various  adaptations 
fro-m  epoch  to  epoch  have  only  confirmed  the  fundamental 
principles  of  the  general  system. 

In  a  sense  an  effect  corresponding  to  that  of  the  term 
usages  in  the  Turkish  capitulations  and  treaties  is  produced 
by  the  language  of  the  Chinese  and  other  treaties  referring  to 
the  most-favored-nation.  The  most-favored-nation  clauses 
have  effected  an  enlargement  of  the  jurisdiction  to  the  full- 
est extent  granted  in  any  of  the  treaties  and  have  made  the 
privileges  practically  uniform  for  all  the  treaty  powers. 
Thus  a  narrower  grant  of  jurisdiction,  coupled  with  a  most- 


jurisdiction  In  Japan,  Viscount  Aoki,  Minister  of  Foreign  Affairs,  said 
in  1900:  "The  actual  stipulations  contained  in  Japan's  ancient 
Treaties  are  not  so  directly  responsible  for  that  incompatibility 
[with  constitutional  government  in  Japan]  as  are  the  privileges 
and  immunities  which  are  destitute  of  any  express  warrant  for 
their  existence,  but  which  have  been  claimed  upon  the  supposi- 
tion— a  supposition  which  the  Imperial  Government  do  not  share — 
that  they  are  essential  to  the  proper  and  complete  enjoyment  of 
guaranteed  rights."  Parliamentary  Papers,  vol.  xcvi,  Japan  No. 
1.  p.  52. 


CHANGED  CONCEPTIONS  OF  SOVEREIGNTY     17 

favored-nation  clause,  has  been  enlarged  thereby  to  the  ex- 
tent of  the  grant  in  a  later  or  even  in  an  earlier  treaty  with 
some  other  power.  In  this  way  the  treaty  of  1869  between 
Austria-Hungary  and  Japan,  in  the  negotiation  of  which  the 
Japanese  later  believed  that  Great  Britain  was  especially  in- 
terested, virtually  created  an  enlargement  of  the  jurisdic- 
tional privileges  of  all  the  treaty-powers  beyond  those  grant- 
ed in  the  treaties  of  1858.  In  one  notable  instance  the  entire 
foreign  jurisdiction  rests  upon  nothing  more  than  a  most- 
favored-nation  clause,  namely,  British  jurisdiction  in  Persia, 
which  rests  upon  a  clause  in  the  British  treaty  with  Persia  of 
1857,  giving  to  Great  Britain  the  benefit  of  other  treaties, 
such  as  the  very  full  treaty  between  Russia  and  Persia  of 
1828.^ 

In  its  historical  beginnings  the  grant  of  extraterritorial   Extra- 
jurisdiction   was   not   considered   a   disparagement   to   the   toriaiity 
sovereiffnty  of  the  state  that  granted  it.    The  conception  of   parage- 

^      ->  "  ^  ment,  a 

sovereisnty  as  territorial  is  relatively  modern,  and  extra-   modern 

.  „     ,  ,.  .,.  concep- 

territoriality  is  a  surviving  form  of  the  earlier  prevailing  tion 

conception  that  it  was  the  duty  of  a  sovereign  to  protect 
those  who  swore  their  personal  allegiance  to  him.  This 
principle  of  personal  or  national  allegiance  continued  to 
operate  much  longer  in  oriental  states  than  it  did  in  the 
states  of  western  Europe.  It  was  usually  by  rendering  mili- 
tary service  or  by  the  payment  of  tribute  that  various 
divisions  of  the  oriental  nation  recognized  the  sovereignty 
of  the  central  power,  and  the  territorial  borders  of  an  ori- 
ental state  extended  as  widely  as  its  rulers  could  compel  the 
giving  of  tribute  or  of  military  service.  In  this  way  the  rulers 
in  the  Levant  thought  of  the  European  traders  as  sufficiently 
acknowledging  their  sovereignty  when  they  paid  the  taxes 
at  the  seaport.  So  also  in  China  and  Japan,  the  Europeans, 
when  they  had  paid  taxes  on  their  trade,  were  regarded  as 
having  given  satisfactory  recognition  of  the  sovereigns  of 
those  countries.    In  the  early  years  of  western  intercourse 

>  Hertslet,  Persian  Treaties,  London,  1891,  p.  19,  128;  Piggott,  Exter- 
ritoriality, London,  1892,  p.  66. 


ciproclty 


18  LIMITED  RECIPROCITY  TOWARD  TURKS 

with  countries  of  the  Far  East  there  was  less  pride  on  the 
part  of  oriental  sovereigns  in  preserving  their  territorial 
Jurisdiction.  China,  indeed,  appears  to  have  desired  to  retain 
territorial  jurisdiction,  Japan  to  have  yielded  for  the  sake  of 
convenience  and  to  avoid  entanglement  with  foreign  powers. 
There  existed  in  Turkey  before  the  middle  of  the  nineteenth 
century,  no  thought  of  extraterritoriality  as  a  disparagement 
to  the  sovereignty  of  the  Sultans,  and  in  1875  Turkey  made 
a  consular  convention  with  Persia  in  which  extraterri- 
toriality in  its  fullest  form  was  mutually  granted.^ 
Excep-  The   ordinary   non-reciprocity   as   between   western   and 

non-re°  eastern  states  in  respect  to  extraterritoriality  is  also  not 
without  exceptions.  Spain  conceded  extraterritorial  privi- 
leges to  Turkish  subjects  by  a  treaty  of  September  14-, 
1783,  which  was  confirmed  by  a  treaty  of  March  2,  1840; 
and  by  a  treaty  with  Tripoli  of  September  10,  178-4,  the 
same  privileges  were  extended  to  subjects  of  Tripoli  in 
Spain.2  Great  Britain,  by  a  treaty  with  Turkey  of  January 
5,  1809,  agreed  that  Turkish  consuls  or  shabbenders  in 
Malta  should  have  'similar  privileges  and  immunities  to 
those  granted  to  English  consuls  resident  in  the  Ottoman 
Dominions';^  yet  whether  a  Turkish  consul  in  Malta  ever 
exercised  extraterritorial  jurisdiction  there  is  no  evidence. 

1  Hertslet,  Persian  Treaties,  p.  179;  at  p.  184,  the  text  of  a  vizierial 
letter  explanatory  of  the  details  of  the  convention  is  given.  See  also 
notes  to  cases  involving  Persians  tried  in  Turkey,  Journal  du 
droit  international  prive  et  de  la  jurisprudence  comparee,  1900, 
p.  401,  447,  and  1901,  p.  591. 

»Cantillo,  Tratados,  Madrid,  1843,  p.  569,  590,  887;  Riquelme,  Derecho 
publico  internacional,  Madrid,  1849,  book  1,  p.  391.  Riquelme  thinks 
that  in  practice  the  subjects  of  Morocco  also  had  extraterritorial 
privileges.  Spain  maintained  special  courts  for  jurisdiction  of  all 
foreigners. 

» Brit,  and  For.  State  Papers,  vol.  1,  pt.  1,  p.  771,  Art.  VIII. 


II 


THE    UNITED    STATES    ORIENTAL    TREATIES 

Privileges  of  exemption  from  native  jurisdiction  in  the 
East  have  been  a  subject  of  treaty  negotiation  on  the  part  of 
the  United  States,  first,  with  the  group  of  Mohammedan 
countries  mainly  situated  south  and  east  of  the  Mediter- 
ranean Sea;  secondly,  and  generally  at  a  later  period,  with 
China,  Siani,  Japan,  Korea  and  the  native  governments  of 
islands  in  the  South  Pacific  Ocean.  The  foreign  jurisdiction 
of  the  United  States  has  thus  been  established  in  one  ori- 
ental country  after  another,  following  the  eastward  ex- 
pansion of  our  commerce.^ 

While  the  commissioners  who  had  signed  the  treaty  of  ^he  Bar- 
peace  of  1782  with  Great  Britain  were  still  in  Paris,  they  states 
were  authorized  by  Congress  to  negotiate  with  the  rulers  of 
the  Barbary  States  or  to  empower  substitutes  to  negotiate. 
Through  a  substitute,  Thomas  Barclay,  the  earliest  of  these 
treaties,  that  of  1787  with  Morocco,  was  obtained.  Other 
early  treaties  with  North  African  states  were  negotiated 
by  consuls  under  instructions  issued  to  Colonel  David 
Humphreys,  minister  to  Portugal.  The  second  treaty  with 
Tripoli,  that  of  1805,  was  primarily  a  treaty  of  peace,  and 
the  treaty  of  1815  with  Algiers  resulted  immediately  from 
the  appearance  of  Commodore  Decatur's  fleet  before  the 
city.' 

*  Portions   of   the   treaties   are   printed   infra,   Appendix   I. 

2  In  the  making  of  these  early  treaties  the  feature  of  extraterri- 
toriality appears  not  to  have  been  thought  exceptionally  Important. 
The  treaties  resemble  those  of  England,  France  and  Holland  of  the 
seventeenth  century,  which  were  publishe'd  previous  to  the  American 
negotiations  in  Dumont,  Corps  universel  diplomatique  du  droit  des 
gens,  Amsterdam,  1776  and  later,  and  Wenck,  Co'^^'x  juris  gentium, 
Leipsic,  1781  and  later. 


20  WITH  MOHAMMEDAN  STATES 

Of  these  extraterritorial  treaties  there  are  still  in  force 
only  the  Morocco  treaty  of  1836  and  the  Tripoli  treaty  of 
1805.  The  Tunis  treaty  of  1797  was  nominally  in  force 
until  March  15,  1904,  when  the  United  States,  by  special 
treaty,  recognized  the  protectorate  over  Tunis  which  France 
had  established  in  1881.^  In  1830  jurisdiction  in  Algiers 
ceased  with  the  military  occupation  of  that  country  by 
France  which  subsequently  developed  into  annexation.^  The 
protege  system  in  Morocco  was  regulated  by  a  convention 
signed  by  several  powers  at  Madrid  in  1880.^  In  1904  Great 
Britain  recognized  the  predominating  influence  of  France  in 
Morocco.  Similarly,  Italian  influence  tends  to  predominate 
in  Tripoli. 
Maskat  A  treaty  with  Maskat,  another  Mohammedan  state,  was 

zibar  negotiated  in  1833  by  Edmund  Eoberts,  a  sea  captain,  com- 

missioned by  President  Jackson.  Maskat  then  extended 
from  the  Persian  Gulf  southward  along  the  coasts  of  Africa, 
but  to-day  it  comprises  only  a  small  area  at  the  mouth  of 
that  Gulf.  Having  gained  independence  from  Maskat,  the 
rulers  of  the  island  of  Zanzibar  and  the  adjacent  mainland 
made  a  treaty  of  extraterritoriality  with  the  United  States 
in  1886.  Since  then,  excepting  a  few  mainland  ports  leased 
to  Italy,  Zanzibar  has  become  a  British  protectorate,  and  by 
convention  of  February  5,  1905,  with  Great  Britain  extra- 
territoriality therein  has  been  relinquished  by  the  United 
States.* 
Persia  The  treaty  with  Persia  of  1856  was  negotiated  at  Con- 

stantinople by  the  American  minister  to  Turkey,  Carroll 
Spence.  It  is  one  of  the  few  treaties  with  Persia  that 
directly  grant  extraterritorial  privileges.  The  British  privi- 
leges of  extraterritoriality,  for  instance,  rest  solely  upon  a 
most-favored-nation  clause." 

The  treaty  of  1830  with  the  Ottoman  Porte  was  nego- 

'  Compilation   of   Treaties   in    Force,    Sen.    Doc.    318,    p.    949    (vol.    37> 
58th  Cong.,  2d  Sess. 
>  Cf.  Mahoney  v.  U.  S.,  10  Wall.     (U.  S.)  62. 
» Brit,    and   For.    State  Papers,   vol.   71,  p.  639-44. 
*  Archives   diplomatiques,   1905,    pt.    iii,    p.    262-4. 
'  Supra,    p.   17. 


NEGOTIATIONS  WITH  TURKEY 


21 


tiated  under  most  adverse  circumstances  and  the  particulars 
of  its  negotiation  possess  special  interest  on  account  of 
their  bearing  upon  the  long  disputed  question  of  inter- 
preting the  fourth  article  of  the  treaty.  Civil  strife  was 
distracting  the  country  and  Constantinople  was  already  the 
center  of  the  conflicting  policies  that  eventually  brought 
about  the  Crimean  War.  American  trade  had  been  protect- 
ing itself  by  paying  a  heavy  'consulate  duty'  to  the  English 
Levant  Company  and  the  exclusive  commercial  privileges  of 
England,  France  and  the  Italian  States,  enjoyed  by  them  for 
fully  three  centuries  preceding,  were  being  threatened  with 
infringements  through  the  opening  of  the  Black  Sea,  which 
Eussia  and  other  powers  had  secured  in  1827  and  later. 
Eussia  was  friendly  to  the  United  States  throughout  the 
negotiation  of  the  treaty,  but  the  American  agents  deemed 
it  best  to  approach  the  Porte  without  the  good  offices  of  any 
European  power.  The  first  commissioner  of  the  United 
States,  Luther  Bradish  of  New  York,  when  asked  at  an 
official  interview  in  1820  under  the  protection  of  what 
European  power  he  had  placed  himself,  replied,  "That  of  the 
Sublime  Porte."  This  exhibition  of  confidence  gratified  the 
Turkish  officials  exceedingly,  yet  they  withheld  themselves 
from  negotiating. 

The  agents  sent  by  this  government  in  1820,  1823  and 
1825  obtained  copies  of  treaties  between  Turkey  and  Eng- 
land, France  and  Venice,  and  they  also  secured  advantages 
in  trade  at  Smyrna.  In  1828  President  Adams,  having  re- 
ceived an  invitation  from  the  Turkish  authorities  to  resume 
negotiations,  issued  a  Joint  commission  to  Captain  W.  M. 
Crane,  commander  of  the  American  squadron  in  the  Medi- 
terranean, and  David  Offley,  who  had  been  consul  at  Smyrna 
for  several  years.  Yet  even  under  these  auspices  no  treaty 
was  negotiated. 

Finally,  in  1829,  President  Jackson,  believing  the  time  op- 
portune, appointed  Captain  James  Biddle,  David  Offley  and 
Charles  Ehind  commissioners  with  full  power  jointly  and 
severally  to  negotiate  with  the  Porte.  They  were  furnished 
with  copies  of  the  capitulations  in  favor  of  France  of  1740 
and  of  the  treaty  of  1827  between  Turkey  and  Spain.    They 


Early 
negoti- 
ations 
with 

the  Otto- 
man 
Porte 


The  com- 
mission 
sent  by 
Presi- 
dent 
Jackson 


22  MAKING  OF   THE  TREATY   OF   1830 

were  instructed,  with  special  emphasis,  to  obtain  absolute 
protection  for  American  citizens  and  the  largest  privileges 
for  their  trade,  including  those  recently  granted  to  the  lead- 
ing European  powers,  namely,  navigation  of  the  Black  Sea 
and  a  tariff  of  customs  duties  of  not  more  than  three  per 
cent,;  and  they  were  enjoined  to  use  particular  care  to  obtain 
accurate  translations  of  documents,  so  that  misunderstand- 
ings 'might  not  arise  from  obscure  language  in  the  treaty,  a 
source,  it  was  believed,  from  which  difficulties  between  Tur- 
key and  other  states  had  previously  arisen.  Mr.  Rhind  was 
to  proceed  alone  to  Constantinople,  and  when  the  success  of 
the  negotiations  was  beyond  doubt,  he  was  to  be  joined  by 
his  fellow-commissioners.^ 
Mr.  With  peculiar  precautions  of  secrecy  Mr.  Rhind  embarked 

mission  at  Philadelphia  at  night  and  sailed  to  the  island  of  Minorca, 
where  he  joined  Captain  Biddle  in  the  frigate  Java.  On 
December  26,  1829,  when  the  frigate  dropped  anchor  below 
the  citadel  of  Smyrna,  Mr.  Offley  came  on  board  and  stated 
that  the  nature  of  their  mission  was  already  perfectly  well 
known  in  that  city.  Nevertheless,  Mr.  Rhind  cautiously 
made  his  way  to  Constantinople. 

Gradually  he  prepared  to  meet  the  Turkish  officials  under 
favorable  circumstances.  With  the  assistance  of  the  drago- 
man Navoni,  he  put  his  proposed  address  into  the  French 
and  Turkish  languages.  When  he  came  before  two  of  the 
chief  dignitaries,  he  gave  them,  upon  request,  a  transcript  of 
the  address  in  Turkish.  Four  days  later  it  was  learned  that 
the  Sultan,  upon  reading  it,  had  directed  the  Reis  Effendi  to 
close  with  the  Americans  to  their  satisfaction.  The  Reis 
Effendi  now  formally  received  the  commissioner,  sending 
horses  to  the  landing  place  and  giving  publicity  to  the  affair 
as  for  the  audience  of  an  ambassador  of  a  friendly  power. 
After  the  usual  ceremony  of  pipes  and  coffee,  the  Reis 
Effendi  inquired  whether  the  commissioner  wished  to  modify 
his  proposals,  and  being  assured  in  the  negative,  he  said 

>  Ho.  Ex.  Doc.  250  (including  the  two  documents  under  this  number, 
the  first  designated  as  "Treas.  Dept.,"  p.  1-95,  the  second  as  "Execu- 
tive," p.  1-27),  (vol.  6)  22d  Cong.,  1st  Sess.;  see  also  Sen.  Ex.  Doc.  200, 
p.  1-215,   (vol.  3),  25th  Cong.,  3d  Sess. 


THE   TREATY   DOCUMENTS  23 

that  the  Sublime  Porte,  desirous  of  giving  a  proof  of  friendly 
feeling  toward  the  United  States,  had  ordered  a  treaty  to  be 
drawn  up  in  strict  conformity  with  the  one  Mr.  Ehind  had 
submitted  and  that  he  then  had  the  honor  of  presenting  it. 
In  a  subsequent  conference,  Mr.  Ehind's  report  continues, 
the  Reis  Effendi  "signed  and  sealed  the  treaty  in  Turkish, 
and  I  did  the  same  with  the  French  translation;  and  we  ex- 
changed them.'^ 

The  original  treaty  in  Turkish,  signed  by  the  Reis  Effendi,  docu- 
was  transmitted  to  Washington  together  with  a  copy  of  the  before 
treaty  in  French,  as  signed  by  the  American  commissioners,  senate 
and  with  other  French  and  English  translations.    The  Turk- 
ish original  and  French  and  English  translations  were  sent 
to  the  Senate.     The  document  actually  voted  upon  and  ap- 
proved by  the  Senate  was  one  of  the  English  translations, 
and  with  the  Turkish  text  it  forms  part  of  President  Jack- 
son^s  ratification.  ^ 

Before  the  ratifications  were  exchanged  at  Constanti-  Ratifl- 
nople,  the  American  charge  d'affaires,  Commodore  David 
Porter,  received  complaints  that  the  French  translation  re- 
turned by  him  was  not  in  perfect  accord  with  the  Turkish 
original,  a  circumstance  purely  the  result  of  mistranslation. 
To  obviate  the  difficulty  he  signed  a  paper  which  purported 
to  accept  the  Turkish  instrument  without  reserve  of  any 
word.  This  signed  paper  was  itself  in  the  Turkish  language. 
A  translation  of  it,  sent  to  Washington,  did  not  call  forth 
disapproval.^ 

It  was  nearly  forty  years  after  its  negotiation  that  cor-   inter- 
respondenee  arose  between  the  two  governments  regarding   tion  of 
the  interpretation  of  Article  IV  of  the  treaty.    In  1868  two   iv  ^  ^ 
Americans,  alleged  to  have  been  concerned  in  an  affray  in 
Syria,  were  arrested  and  imprisoned  by  the  local  authorities. 
The  American  minister,  E.  Joy  Morris,  demanded  their  re- 

1  Notes  written  by  J.  H.  Haswell  supplementary  to  the  notes  of  J.  C. 
B.  Davis,  Treaty  Volume  of  1889,  p.  1369. 

»Jour.  Ex.  Proceedings  of  Senate,  vol.  4,  p.  126;  8  Debates  in  Con- 
gress, 2186-98.  The  expenses  incurred  for  gifts  at  the  time  of  ex- 
changing the  ratifications  were  very  large;  Ho.  Ex.  Doc.  303  (vol.  6), 
22d  Cong.,  1st  Sess. 


24  INTERPRETATION  OF  ARTICLE  IV 

lease  upon  the  strength  of  that  part  of  the  English  text  of 
Article  IV,  as  published  in  the  United  States  statutes,  which 
reads : 

Citizens  of  th«  United  States  of  America,  quietly  pursuing 
their  commerce,  and  not  being  charged  or  convicted  of  any  crime 
or  offence,  shall  not  be  molested;  and  even  when  they  may  have 
committed  some  offence  they  shall  not  be  arrested  and  put  iu 
prison,  by  the  local  authorities,  but  they  shall  be  tried  by  their 
Minister  or  Consul,  and  punished  according  to  their  offence,  fol- 
lowing, in  this  respect,  the  usage  observed  towards  other 
Franks.' 

In  reply,  the  Turkish  Minister  of  Foreign  Affairs  pro- 
nounced the  English  text  of  Article  IV  a  defective  transla- 
tion of  the  Turkish  original,  which  he  claimed  to  be  the 
standard,  and  declared  that  the  words  of  the  translation 
pertaining  to  exemption  of  American  offenders  from  arrest 
and  trial  by  the  local  authorities  were  not  to  be  found  in  the 
Turkish  text  of  the  article. 

The  American  government,  while  admitting  itself  to  be 
bound  by  the  Turkish  text,  declined  to  concede  the  correct- 
ness of  the  construction  put  upon  it  by  the  Ottoman  author- 
ities, and  took  steps  to  obtain  an  exact  translation. 
Trans-  No  translation  was  found  to  contain  the  word  'arrested^ 

or  the  word  'tried,'  yet  every  translation  contained  phrases 
stipulating  that  American  citizens  should  not  be  imprisoned 
in  a  Turkish  prison,  but  should  be  punished  through  the 
instrumentality  of  their  minister  or  consul.  Thus  it  ap- 
peared that  if  the  Turkish  authorities  should  assume  to 
arrest,  the  treaty  forbade  them  to  imprison,  and  if  they 
should  undertake  to  try  the  offender,  the  treaty  denied  them 
the  right  to  execute  the  penalty.  Such  an  alternation  of 
procedure  was  regarded  confused  and  impracticable.^ 

The  Ottoman  Porte  did  not,  however,  admit  the  accuracy 
of  any  of  the  translations  obtained  by  the  United  States, 
and  when  invited  to  present  a  translation  of  its  own,  post- 
poned doing  so  for  many  years.    It  was  not  until  1888  that, 

1 8   Stat,   at  Large,    409. 

» Correspondence    of    1880-1,    quoted    in    For.    Rel.    1885,    p.    892. 


latlons 


powers 


CONCESSIONS  PROPOSED  TO  TURKEY  25 

under  authority  of  his  government,  Mavroyeni  Bey,  Turkish 
minister  at  Washington,  presented  the  following  translation : 

Les  citoyens  Americains  vaquant  paisiblement  aux  affaires  de 
leur  commerce  ne  seront  point  molestes  sans  motif  tant  qu'ils 
n'auront  pas  commis  quelque  delit  ou  quelque  faute;  meme  en 
cas  de  culpabilite,  ils  ne  seront  pas  emprisonnes  par  les  juges  et 
les  agents  de  la  surSte,  mais  ils  seront  punis  par  les  soins  de 
leur  ministre  et  consul  k  I'instar  de  ce  qui  se  pratique  a  I'egard 
des  autres  Francs.' 

Upon  the  basis  of  this  official  translation  the  Secretary  of  Propo- 

sal    to 

State,  Mr.  Blaine,  claimed  that  the  inhibition  upon  Turkey  accept 

the  treat- 
not  to  imprison  and  the  provision  that  offenders  should  be  ment 

punished  under  the  direction  of  their  minister  or  consul  ed  to  the 
necessarily  involved  the  right  to  try ;  but  as  a  concession  to  a  pean 
friendly  power,  he  offered,  while  retaining  the  right  to 
punish,  to  yield  the  right  of  trial  and  to  accept  the  pro- 
cedure followed  in  the  case  of  certain  European  powers 
under  which  alien  offenders  have  been  tried  in  courts  of  the 
local  government,  the  dragoman  of  the  legation  being 
present.^  Yet,  with  surprising  indifference  to  the  reason- 
ableness and  value  of  these  concessions,  Mavroyeni  Bey  at 
once  proceeded  to  contest  the  right  to  punish,  though  his 
own  translation  admitted  this  right  in  the  clearest  terms; 
and  he  argued  that  the  final  clause,  in  referring  to  the 
usages  observed  toward  other  Franks,  formed  a  restriction 
upon  all  the  foregoing  provisions,  and  that  when  the  treaty 
was  made,  these  usages  did  not  include  the  right  to  punish, 
any  exceptions  to  the  contrary  existing  only  'abusively.' 
But,  answered  the  American  authorities,  the  final  clause. 


•  For.  Rel.  1900,  p.  917.  The  translation  of  this  French  version  given 
by  the  Department  of  State  la  as  follows:  "American  citizens  peace- 
ably attending  to  matters  of  commerce  shall  not  be  molested  without 
cause  so  long  as  they  shall  not  have  committed  any  offense  or  fault. 
Even  In  case  of  culpability  they  shall  not  be  Imprisoned  by  the  Judges 
and  police  agents,  but  they  shall  be  punished  through  the  agency  of 
their  ministers  and  consuls,  according  to  the  practice  observed  in  re- 
gard to  other  Franks." 

=  For.  Rel.  1900,  p.  915-9. 


26 


SIMILAR  TEXTS  OF  OTHER  TREATIES 


Resem- 
blance 
of  Article 
IV  to 
provl- 
Blons  of 
treaties 
between 
Turkey 
and  other 
powers 


Exist- 
ing prac- 
tice 


being  general  in  its  terms,  was  simply  explanatory  and  could 
in  no  wise  restrict  the  specific  grant  of  the  right  to  punish. 
Whatever  the  usages  observed  toward  other  Franks  when 
the  treaty  was  negotiated  or  at  any  other  time,  the  Turkish 
government  had  definitely  conceded  the  exemption  of 
American  offenders  from  imprisonment  by  Turkish  officials 
and  had  expressly  given  to  their  ministers  and  consuls  the 
exclusive  right  to  execute  criminal  sentences. 

There  are  three  treaties  of  later  date  than  the  American 
treaty  that  contain  expressions  equivalent  to  those  of  Article 
IV:  the  treaty  with  Belgium,  August  3,  1838;^  with  the 
Hanse  Cities,  May  18,  1839;  ^  and  with  Portugal,  March  20, 
1843.  ^  The  Turkish  government  has  not  contested  the  ac- 
curacy of  these  texts.  If  the  French  texts  are  the  originals, 
or  if  they  are  correct  translations  of  Turkish  originals,  they 
establish  the  fact  that  the  Turkish  government  has  at  least 
in  terms  granted  the  more  extensive  jurisdiction  and  that 
there  was  a  tendency  to  make  the  jurisdiction  of  the  va- 
rious powers  in  Turkey  entirely  uniform.  The  Eussian  treaty 
of  September  2-14,  1829,*  provided  in  its  seventh  article 
that  subjects  of  Eussia  residing  in  Turkey  should  be  under 
the  exclusive  jurisdiction  and  police  control  of  their  min- 
ister and  consuls;  and  the  code  of  criminal  law  of  Eussia, 
Article  175,  provided  that  crimes  committed  by  Eussians, 
whether  against  their  fellow-subjects  or  against  other 
foreigners  or  Turks,  should  be  under  the  jurisdiction  of  the 
Eussian  minister  and  consuls;  but  in  actual  practice  this 
jurisdiction  has  not  been  regailarly  exercised.^ 

The  existing  practice  of  the  various  European  govern- 
ments with  regard  to  criminal  cases  involving  their  subjects 
in  Turkey  had  become  fully  known  to  the  American  author- 
ities through  correspondence  with  those  governments.     It 


>  Brit,  ana  For.  State  Papers,  vol.  26,  p.  1224. 

*  Ibid.,  vol.  28,  p.  450. 

*  Martens,    Nouveau    receuil    general    de    traites    (Murhard),     vol.     5, 
p.  160. 

*  Martens,   Nouveau  receuil,   2d  ed.,  vol.  8,   p.  147. 

'  Martens,  Das  Consularwesen,  p.  470;  Hall,   Foreign  Jurisdiction,  p. 
133,   footnote  2,  and  p.   153,   footnote  2. 


EUROPEAN  PRACTICE  27 

was  found  that  ordinarily  such  cases  were  left  to  Turkish 
jurisdiction,  but  with  the  safeguards  of  immediate  notice  of 
arrest,  presence  of  the  dragoman  at  the  trial,  and,  if  desired, 
execution  of  the  penalty  under  supervision  of  the  national 
authorities  of  the  accused.  With  such  a  system  in  use,  no 
case  of  any  importance  failed  to  be  virtually  or  actually 
determined  by  the  minister  or  consul,  and  the  main  benefit 
of  extraterritoriality  was  thus  kept.^ 

The  very  impossibility  of  specifying  in  the  treaties  the  Privi- 
many  details  of  the  usages  and  customs  pertaining  to  extra-  E&ypt 
territoriality,  and  the  infrequency  with  which  some  of  them 
are  claimed,  have  made  it  difficult  at  times  to  establish  a 
right  to  them.  Moreover,  the  privileges  of  extraterritorial- 
ity in  Egypt  have  been  considerably  greater  than  elsewhere 
in  the  empire,  and  occasionally  there  has  been  a  claim  of  the 
right  to  enjoy  in  other  parts  of  Turkey  the  privileges  which 
usage  and  local  law  have  made  peculiar  to  Egypt.^ 


>  Pradier-Fod6r6,  Droit  international  public,  Paris,  1888,  vol.  4,  p.  753, 
after  citing  the  capitulations,  says:  "On  volt  par  ces  textes  que  la 
jurldiction  n'est  express^ment  et  dans  la  rSgle  accordfie  aux  consuls 
qu'autant  que  les  actes  passibles  de  repression  ont  6t6  commis  par 
les  nationaux  de  ces  consuls  a  regard  d'autres  nationaux  ou  de  pro- 
t6g6s  de  r£tat  dont  ces  consuls  dependent;  cependant  I'usage  g4n6ral  a 
fetendu  cette  competence  aux  cas  ou  des  etrangers  s'y  trouveraient 
interess6s,  et  il  est  g6n6ralement  constats,  en  ce  qui  concerne  notam- 
ment  la  France,  que  toutes  les  fois  que  les  consuls  de  ce  pays  ont 
reclame  la  favour  de  s'emparer  de  la  poursuite  dirigSe  contre  un  de 
leurs  nationaux  ou  prot§g$s  frangais  prfevenu  de  crime  H  16gard  d'un 
sujet  de  la  Porte,  cette  faveur  leur  a  6t6  accordfee.  On  peut  done 
rSsumer  de  la  maniSre  suivante  la  pratique  observ4e  sur  ce  point 
dans  le  Levant  et  les  ^tats  barbaresques  d'apr§s  les  capitulations  et 
surtout  d'apres  les  usages.  S'il  s'agit  de  crimes  ou  de  dfilits  commis 
par  un  stranger  contre  un  autre  stranger  relevant  du  meme  consul, 
c'est  ce  consul  qui  est  competent,  dans  tous  les  cas;  le  droit  de  pour- 
suite  et  la  repression  lui  appartiennent.  Si  les  crimes  ou  deiits  ont  6t§ 
commis  par  un  Stranger  au  prejudice  d'un  sujet  ottoman  ou  barbar- 
esque,  dans  la  regie  I'autorite  locale  devrait  rester  chargee  de  la 
repression  en  presence  du  consul  ou  de  son  deiegue,  mais,  en  fait,  et 
conformement  9,  I'usage,  ces  crimes  et  deiits  sont  le  plus  generalement 
soumis  a  la  juridiction  etrangere.  Que  si,  enfin,  les  crimes  ou  dfilits 
ont  ete  commis  par  un  indigene  contre  un  europeen  ou  un  americaln, 
en  general  ils  sont  juges  par  les  tribunaux  du  pays." 

'  Gatteschl,  Manuale  di  dirltto  pubblico  e  privato  ottomano,  Alex- 
andria, 1865;  appendix  relating  to  Egypt. 


28 


LETTERS  OP  DAINBSE  AND  BROWN 


Letters 
of  Ameri- 
can con- 
suls 

describ- 
ing the 
practice 
of  ap- 
proxi- 
mately 
the  same 
date  as 
the 
treaty 


Certain  earlier  correspondence  of  two  American  consuls 
in  Turkey  explicitly  stating  the  practice  in  criminal  cases  as 
they  knew  it  and  as  it  had  no  doubt  been  when  the  treaty 
was  made,  appears  not  to  have  been  brought  to  the  attention 
of  the  A-merican  authorities  at  any  time  during  the  long  con- 
troversy. This  is  the  correspondence  of  Francis  Dainese, 
consul  at  Constantinople  in  1852,  and  of  John  P.  Brown, 
whose  career  as  consul  and  as  dragoman  to  the  legation  ex- 
tended as  far  back  as  1833. 

Mr.  Dainese,  in  describing  generally  the  operation  of  the 
treaty,  being  manifestly  without  argumentative  purpose 
and  unaware  that  any  difference  of  interpretation  might 
arise,  wrote  as  follows : 


In  criminal  cases  between  Turks  and  foreigners,  which  ard 
tried  before  the  council  of  police,  if  the  award  be  adverse  to  the 
latter,  they  are  not  subject  to  its  execution  in  Turkey,  but  are 
sent,  together  with  the  documents  relative  to  the  case,  to  their 
respective  governments  for  disposal.  '■ 

Mr.  Brown,  who  was  at  the  time  consul-general  at  Con- 
stantinople, having  observed  that  Attorney-General  Cush- 
ing,  in  his  opinion  under  date  of  September  19,  1855,^  had 
assumed  that  Article  TV  gave  Americans,  if  charged  with 
criminal  offenses,  the  right  to  be  tried  by  their  consul,  wrote 
a  letter  with  the  distinct  purpose  of  showing  this  belief  to  be 
erroneous.^  Mr.  Brown,  speaking  of  the  practice  then  exist- 
ing, says  that  it  is  true  of  all  foreigners,  including  Ameri- 
cans, that  they  are 

tried  for  the  commission  of  crime,  whenever  their  plaintiffs  are 
Ottoman  subjects,  by  the  Ottoman  courts  only,  'in  the  presence 
of  the  American  dragoman.'  For  this  purpose  the  Sublime  Porte 
has  established  a  police  court  under  the  minister  of  police  or 
his  assistant,  and  there  are  no  foreigners  among  its  members. 


1  Ho.  Ex.  Doc.  82,  p.  192  (vol.  10).  34th  Cong.,  3d  Sess. 

'  7  Opin.  Atty-Gen.  502.  An  opinion  had  been  given  by  Attorney-Gen- 
eral Toucey,  January  31,  1849,  that  the  Act  of  1848  extended  to  Tur- 
key in   respect  to   criminal  jurisdiction  only;   5  Opin.   Atty-Gen.   67. 

>  Ho.  Ex.  Doc.  68,  p.  65  (vol.  7),  35th  Cong.,  2d  Sess. 


FINAL  AMERICAN  POSITION  29 

Its  decisions  are  executed  by  itself  in  ordinary  cases,  yet  in 
capital  ones,  or  even  when  the  criminal  is  condemned  to  a  long 
imprisonment,  it  makes  him  over  if  so  required,  to  his  own 
legation  to  be  sent  to  his  country  for  punishment.  ...  In  the 
Turkish  original  the  word  'tried'  by  their  minister  or  consul  cer- 
tainly does  not  exist,  and  the  language  used  refers  to  the  carry- 
ing into  execution  of  the  punishment  deemed  necessary  for  the 
American  criminal. 


The  importance  of  this  correspondence  is  unquestionable.  Final 

It  shows  that  the  actual  practice  in  the  earlier  years  of  treaty  <^^f_ 

relations  between  the  United  States  and  Turkey  exactly  cor-  can  gov- 

•^  *^  ernment 

responded  with  what  the  American  government,  after  re- 
examination of  the  text  of  the  treaty  and  patient  investi- 
gation regarding  the  usages  in  extraterritorial  jurisdiction 
in  Turkey,  declared  that  it  was  willing  to  accept.  This  final 
position  of  the  United  States  was  declared  in  the  instruc- 
tions given  by  Secretary  of  State  Blaine,  December  32,  1890, 
in  the  case  of  Gurdjian,  charged  with  a  political  offense 
against  Turkey.  These  instructions  have  since  been  in- 
cluded in  the  general  instructions  to  American  representa- 
tives in  Turkey.^  The  United  States  was  willing  to  yield  on 
the  question  of  trial  and  to  permit  the  rest  of  the  article  to 
stand  without  interpretation  until  occasion  should  arise. 
When  Turkey  declined,  the  long  controversy  ended. 

The  later  American  treaties  with  Turkey  do  not  enlarge  Later 
the  scope  of  consular  jurisdiction  beyond  that  contemplated  with 
by  the  treaty  of  1830.  The  commercial  treaty  of  1862  con- 
tained a  most-favored-nation  clause  in  the  ordinary  form, 
and  before  it  became  obsolete  in  1886  the  Ottoman  Porte 
had  admitted  that  in  the  future  the  United  States  should 
continue  to  enjoy,  in  respect  to  the  matters  covered  by  this 
treaty,  equal  treatment  with  other  powers.^ 


»  For.  Rel.  1900,  p.  915.  Correspondence  relating  to  the  trial  of  Var- 
tanian  in  the  summer  of  1905  for  murder  is  not  published  at  this  writ- 
ing. 

'  President  Cleveland's  annual  message,  December  8,  1885,  For.   Rel. 
1885,  p.  xlv. 


30  EFFECT  OF  THE  REAL  ESTATE  PROTOCOL 

There  is  a  convention  between  the  United  States  and 
Turkey  of  August  11,  1874,  for  the  extradition  of  criminal 
offenders.^ 

In  view  of  the  mutual  advantages  that  would  he  derived 
from  a  convention  regarding  naturalization  it  appears 
strange  that  the  various  attempts  made  in  that  direction 
have  as  yet  been  unsuccessful. 
■Real  es-  By  the  protocol  of  August  11,  1874,^  relating  to  the  right 
tocoi.  1874  to  hold  real  estate  in  Turkey,  it  is  provided  that  in  places 
distant  nine  hours  or  more  from  the  residence  of  a  consular 
officer,  the  agents  of  the  public  force,  on  request  of  the  local 
authority  and  in  the  presence  of  three  members  of  the 
council  of  elders  of  the  commune,^  may  enter  into  the  resi- 
dence of  a  foreigner  without  the  usual  formality  of  the  pres- 
ence of  a  consular  officer,  but  only  in  case  of  urgency  and 
for  the  search  and  proof  of  certain  heinous  crimes.  The 
protocol  also  provides  that  in  similar  distant  localities  in 
which  the  law  of  the  judicial  organization  of  the  vilayet 
shall  be  in  force,  foreigners  shall  be  tried,  without  consular 
assistance,  by  the  council  of  elders  acting  as  justices  of  the 
peace  and  by  the  tribunal  of  the  canton,  both  in  actions  not 
exceeding  one  thousand  piastres  in  value  and  for  offenses 
entailing  a  fine  of  not  more  than  five  hundred  piastres;  and 
in  any  locality  whatever,  foreigners  may  submit  to  the  juris- 
diction of  the  previously  mentioned  Turkish  courts  without 
consular  assistance  and  after  giving  consent  in  writing;  yet 
in  all  instances  where  Turkish  courts  exercise  this  jurisdic- 
tion, a  right  of  appeal  to  the  tribunal  of  the  arrondissement, 
with  the  usual  assistance  of  the  consul,  is  reserved. 

In  the  opinion  of  the  ambassador  of  France  at  Constanti- 
nople, M.  Bouree — with  whose  assistance  the  real  estate 
protocol  submitted  to  the  powers  and,  it  is  believed,  the 
real  estate  law  of  1867  as  well,  were  framed  by  the  Ottoman 

J  Infra,  p.  105. 

'  The  English  version  of  the  protocol  appears  in  18  Stat,  at  Large,  850. 
The  original  of  the  corresponding  French  protocol  of  June  9,  1868,  is 
given  in  De  Clercq,  Recueil  des  traitfes  de  la  France,  vol.  10,  p.  76. 

» As  to  administration  of  justice  in  the  vilayets  see  Aristarchi, 
Legislation   Ottomane,    Constantinople,    1873-81,   vol.    2,   p.    273. 


FIRST  SYSTEM  OF  TRADE  WITH  CHINA  31 

Porte — although  the  law  and  protocol  specify  "slight  dero- 
gations to  the  capitulations,  .  ,  .  the  ancient  guaranties 
are  therein  none  the  less  formally  maintained."  ^ 

Although  the  United  States  entered  into  treaty  relations   Treaties 
with  most  of  the  Mohammedan  governments  at  an  earlier   j^"*  °' 
period  than  it  did  with  China  and  Japan,  yet  the  commerce    later 
between  America  and  the  Far  East  had  long  been  of  far 
greatei*  value  than  American  commerce  in  the  Levant.    The 
goods  sold  to  the  Chinese  were,  for  the  most  part,  skins  and 
furs  taken  in  the  South  Seas  and  from  the  Oregon  territory, 
besides  South  American  and  tropical  products  obtained  in 
exchange  for  American  domestic  products  in  Peru,  Chile, 
East  India  and  the  Malay  archipelago.- 

The  system  of  trading  at  Canton  was  controlled  by  The 
specially  authorized  mercantile  corporations  called  'cohongs'  system 
or  'hongs,^  that  is,  Svarehouse^  or  wholesale  merchants. 
These  hong  merchants  provided  every  facility  of  trade,  in- 
cluding excellent  methods  of  banking,  exchange  and  credit, 
and  it  was  due  to  their  ability  and  justice  in  the  administra- 
tion of  affairs  that  commerce  with  China  prospered  so 
regularly  before  the  treaties  were  made.  The  abolition  of 
the  hong  system  of  the  treaties  was  due,  it  is  believed,  to  the 
desire  of  foreign  merchants  to  break  its  monopoly  and  thus 
to  enjoy  the  advantages  of  a  more  general  competition 
among  the  Chinese  merchants.^ 

The  British  treaty  of  August  29,   1843,  though  it  im-    British 

X.VQ3i,X,lQSf 

posed  upon  China  a  traffic  in  opium  which  China  had  op-  i842,  i843 
posed  in  a  most  bitterly  fought  and  expensive  war,  bene- 
fitted the  world  by  the  opening  of  the  historic  'five  ports' 
to  the  residence  and  trade  of  foreigners  from  the  West. 
This  treaty  and  a  supplementary  one  of  1843  embraced  gen- 
eral regulations  providing  for  extraterritorial  jurisdiction 


1  Archives  diplomatiques,  1868,  pt.  4,  p.  1704.  A  translation  of  M. 
Bourse's  letter  is  given  and  commented  upon  in  Van  Dyck,  Capitula- 
tions of  the  Ottoman  Empire  since  1150,  Sen.  Ex.  Doc.  3,  p.  80,  Spec. 
Sess.  of  1881. 

"  Ho.  Ex.  Doc.  248  (vol.  7),  26th  Cong.,  1st  Sess. 

»Ho.  Ex.  Doc.  119  (vol.  3),  26th  Cong.,  1st  Sess. 


32  A  TREATY  DESIRED  BY  MERCHANTS 

and  were  the  first  concessions  of  this  kind  made  by  China 
in  the  modern  series  of  treaties.^ 
Desire  of       The   treaty  with   China   next  in   order   of   time   to   the 

ArxiGrl"  -— . 

can  mer-   British  was  the  American.     For  several  years  before  the 
for  a  outbreak  of  the  Opium  War  American  merchants  had  been 

petitioning  their  government  to  negotiate  with  China.  The 
disorder  and  violence  caused  by  the  opium  traffic,  a  traffic 
with  which  Americans  had  nothing  to  do,  prorupted  a 
number  of  commercial  houses  in  Canton  to  send  a  memorial 
to  Congress  praying  for  the  im'mediate  negotiation  of  a 
treaty.  One  of  the  desired  stipulations  was:  "That  until 
the  Chinese  laws  are  distinctly  made  known  and  recognized, 
the  punishment  for  wrongs  committed  by  foreigners  upon 
Chinese,  or  others,  shall  not  be  greater  than  is  applicable 
to  the  like  ojffence  by  the  laws  of  the  United  States  or  Eng- 
land; nor  shall  any  punishment  be  inflicted  by  the  Chinese 
authorities  upon  any  foreigner  until  the  guilt  of  the  party 
shall  have  been  fairly  and  clearly  proved."^  In  1843  Con- 
gress appropriated  |40,000  to  enable  the  President  to  send 
a  commissioner  to  negotiate  with  the  governments  of  Chinai 
and  the  Sandwich  Islands.  Caleb  Cushing,  of  Massachu- 
setts, was  appointed  to  this  office.  Upon  reaching  Macao 
Mr.  Cushing  communicated  with  the  imperial  government 
through  its  provincial  representative,  announcing  his  in- 
tention to  go  to  Peking  by  way  of  the  Peiho  Eiver  and 
Tientsin.  But  the  Emperor  sent  his  commissioner,  Prince 
Tsi-Yeng,  to  Macao  instead,  and  the  treaty  was  negotiated 
there  without  incident,  in  the  brief  period  of  fifteen  days, 
and  was  signed  at  the  village  of  Wang-Hiya,  July  3,  1844. 
Mr.  The  dispatches  sent  by  Mr.  Cushing  to  his  government 

ing's  review  at  some  length  the  history  and  principles  of  con- 

tiona  sular  jurisdiction  in  the  Orient.^     They  state  that  China 

had  always  assumed  jurisdiction  of  crimes  committed  within 


iBrit.  and  For.  State  Papers,  vol.  30,  p.  389,  401;  vol.  31,  p. 
132,   155. 

'Ho.  Ex.  Doc.  40  (vol.  2),  26th  Cong.,  1st  Sess.  A  similar  mem- 
orial was  sent  by  merchants  of  Salem,  Mass.;  Ho.  Ex.  Doc.  170 
(vol.   4),  26th  Cong.,  1st  Sess. 

•Sen.  Ex.  Doc.   58  and  67   (vol.  2),  28th  Cong.,  2d  Sess. 


CUSHING'S  NEGOTIATIONS  33 

its  dominions  by  all  foreigners  excepting  the  Portuguese, 
who  had  special  privileges  at  Macao.^  But,  in  fact,  for  a 
long  period  after  they  were  granted  the  privileges,  the  Por- 
tuguese did  not  enjoy  exemption  from  Chinese  jurisdiction. 
On  the  other  hand,  by  the  treaties  of  1689  -  and  1727,*  be- 
tween China  and  Kussia,  the  leading  men  of  the  two  Kussian 
caravans  permitted  to  come  annually  to  Peking  were  to  have 
full  jurisdiction  over  their  respective  caravans,  and  criminal 
offenders,  taken  in  one  country  or  the  other,  were  to  be  con- 
ducted to  the  frontier  for  trial  and  punishment  under  the 
jurisdiction  of  their  own  government.  In  the  south  of 
China  the  native  authorities  very  strictly  enforced  the  rule 
of  territorial  jurisdiction,  and  rather  than  have  all  trade 
stopped,  as  the  authorities  threatened  to  do  if  offenders 
were  not  given  up,  the  captains  of  merchant  ships  were  ac- 
customed to  hand  over  seamen  offenders  to  Chinese  juris- 
diction.* The  single  instance  of  surrender  of  an  American 
protected  person,  so  far  as  Mr.  Cushing  knew,  was  that  of  a 
seaman,  named  Terranuova,  in  1821.  His  surrender  had 
been  regarded  by  other  Americans  in  China  as  a  recognition 
of  Chinese  territorial  jurisdiction. 

Two  cases  of  violence  implicating  Americans  had  occurred  Early  dif- 

ficultiGS 

while  Mr.  Cushing  remained  at  Macao.     The  first  was  the  known  to 

IMr  Oush" 

shooting  and  killing  of  a  Chinaman  by  an  American  in  self-  ing 
defense  during  the  attack  of  a  Chinese  mob  upon  American 
merchants  in  Canton;  the  Chinese  demanded  his  surrender, 
but  it  was  not  granted.  The  second  was  the  killing  of  an 
American  by  Chinese  soldiers.  There  was  considerable  cor- 
respondence over  this  case;  the  offenders  were  tried  in  a 
Chinese  court.  These  circumstances  may  explain  what 
caused  Mr.  Cushing  to  discuss  extraterritoriality  at  such 
length  and  with  such  detail,  both  in  his  dispatches  as  com- 
missioner to  China  and  subsequently  in  his  opinions  as 
attorney-general. 

1  Infra,  p.  164. 

»  Archives  diplomatiques,  1861,  pt.  1,  p.  271. 

>Ibid.,  p.  276. 

*  Sen.  Ex.  Doc.  58  and  67  (vol.  2),  28th  Cong.,  2d  Sess. 


34 


REED'S  NEGOTIATIONS,  1858 


The 
treaty 
negoti- 
ated by 
William 
B.  Reed 


It  had  been  stipulated  in  the  American  treaty  of  1844,  a3 
in  the  British  and  French  treaties  of  approximately  that 
date,  that  at  the  expiration  of  twelve  years  the  United 
States  and  China,  in  case  of  need  of  modification  of  parts  of 
the  treaty  relating  to  commerce  and  navigation,  would  enter 
into  negotiations  for  this  purpose.  The  end  of  this  period 
found  China  not  only  struggling  to  overcome  the  Taiping 
rebellion  but  also  suffering  humiliation  in  a  war  in  which 
Great  Britain  and  France  were  avenging  certain  acts  of  vio- 
lence upon  their  subjects  in  the  provinces.  The  United 
States  had  been  invited  to  participate  in  the  British  and 
French  hostilities  upon  China,  but  had  declined  to  do  so, 
declaring  the  American  policy  toward  China  to  be  simply 
"to  furnish  protection  to  the  persons  and  property  of  our 
citizens,  and  to  extend  and  increase  the  facilities  for  com- 
mercial operations  by  arrangements  with  the  government, 
and  by  securing  their  faithful  observance,  leaving  to  in- 
dividual enterprise  to  make  the  most  of  the  advantages  thus 
gained.^'  ^  Before  the  war  had  really  ended  Great  Britain 
and  France  had  undertaken  negotiations  for  new  commercial 
treaties.  To  negotiate  a  new  American  treaty  President 
Buchanan  sent  William  B.  Reed  to  China  with  instructions 
that  while  he  was  to  communicate  with  the  plenipotentiaries 
of  Great  Britain,  France  and  Russia  on  subjects  of  mutual 
concern,  he  was  constantly  to  bear  in  mind  the  pacific  and 
friendly  attitude  of  the  United  States  toward  China.  The 
instructions  made  special  mention  of  the  probable  advantage 
of  cooperating  with  the  Russian  plenipotentiary  because  of 
the  peaceable  relations  which  then  existed  between  Russia 
and  China.^ 

The  Chinese  were  very  reluctant  to  make  a  new  treaty 
and  even  claimed  that  the  first  treaties  had  been  intended 


1  Sen.  Ex.  Doc.  47,  p.  7  (vol.  12),  35th  Cong.,  1st  Sess.;  see  also  Sen.  Ex. 
Doc.  22  (vols.  8  and  9),  35th  Cong.,  2d  Sess.;  and  Sen.  Ex.  Doc.  30,  p. 
351,  382,  429  (vol.  10),  36th  Cong.,  1st  Sess.  At  p.  361  of  Doc.  30, 
supra,  Mr.  Reed  said  that  without  the  missionaries  as  interpret- 
ers, referring  especially  to  Dr.  W.  A.  P.  Martin,  the  public  busi- 
ness could  not  have  been  transacted. 

»  Sen.  Ex.  Doc.  47,  p.  2  (vol.  12),  35th  Cong.,  1st  Sess. 


TREATIES  OF  1880  AND  1903 


35 


to  be  permanent.  The  Eussian  treaty  was  the  first  to  be 
signed  and  the  American  next.  The  principal  privileges 
newly  secured  were  that  the  foreign  ministers  were  to  have 
the  right  of  residence  at  Peking,  that  the  number  of  open 
ports  was  increased  to  eleven  and  that  there  was  to  be  a 
commutation  of  internal  transit  taxes  by  the  payment  of  a 
single  tax  at  the  port  of  entry  or,  if  the  goods  were  to  be 
exported,  at  the  first  tax  barrier.  It  was  also  stipulated  that 
a  system  of  passports  for  travel  in  the  interior  should  be 
inaugurated.  The  acquisition  of  land  at  or  near  the  ports 
was  to  be  facilitated;  the  Chinese  government  was  com- 
mitted to  a  tolerant  policy  toward  Christianity  and  toward 
native  converts  and,  lastly,  the  stipulations  concerning  extra- 
territorial jurisdiction  were  stated  more  clearly  and  fully.  ^ 

The  American  treaty  of  November  17,  1880,  also  bears   Treaty 

^,  .,...,       or  1880 

directly  upon  consular  jurisdiction  m  China  by  giving  its 
sanction  to  a  usage  that  had  been  developing  since  1858, 
that  is,  the  attendance  and  participation  of  an  official  of  the 
plaintiff's  nationality  at  the  trial  of  mixed  cases  before  a 
judge  of  the  defendant's  nationality.^ 

The  treaty  of  October  8,  1903,  contains  no  provision 
relating  to  extraterritorial  jurisdiction,  but  it  makes  much 
fuller  stipulations  regarding  certain  commercial  privileges 
and  grants  additional  privileges.' 

The  first  acquaintance  of  American  navigators  with  the   Treaties^^ 
coasts  of  Japan  came  about  during  their  extensive  whaling   p^J^o^^ 
cruises  in  the  North  Pacific  Ocean.    The  masters  of  whaling   later 
ships  desired  to  refit  and  supply  them  in  Japanese  harbors. 
In  1831  a  Japanese  junk  was  blown  out  to  sea  and,  crossing 
the  ocean,  found  refuge  on  the  shores  of  the  Oregon  terri- 
tory near  the  mouth  of  the  Columbia  River.     An  American 
ship  when  taking  the  survivors  back  to  Japan  and  entering 


Treaty 
of  1903 


1  Mr.  Reed's  dispatches  spoke  most  earnestly  of  the  need  of  im- 
proving American  consular  jurisdiction  in  China  and  showed  how,  for 
the  lack  of  proper  prisons,  criminals  were  often  discharged  without 
suffering  their  penalties;  Sen.  Ex.  Doc.  30  (vol.  10),  36th  Cong.,  1st 
Sess.,  p.  355. 

•  For.  Rel.,  1881,  p.  199. 

» Infra,   p.   119,   127,   139,   140,  192. 


36 


EARLY  RELATIONS  WITH  JAPAN 


Commo- 
dore Per- 
ry's nego- 
tiations, 
1854 


the  bay  of  Yedo  was  fired  upon  from  the  land  batteries  and 
not  permitted  to  put  the  castaway  seamen  ashore.  Two 
American  ships  were  wrecked  on  the  coasts  of  Japan  in  1846, 
and  their  crews  would  not  have  been  permitted  to  leave  the 
islands  but  for  the  friendly  entreaties  of  the  Dutch  super- 
intendent of  trade  at  Nagasaki.  In  fact  such  was  the  ex- 
treme rigor  of  the  Japanese  at  that  time  in  enforcing  the 
governmental  policy  of  absolute  exclusion  which  had  been 
occasioned  by  the  abuse  of  privileges  accorded  to  foreigners 
at  an  earlier  period,  that  Japanese  who  had  been  abroad  and 
were  found  to  have  ret^^rned  to  Japan  were  punished  with 
death.  For  the  crew  of  an  American  whaling  ship  stranded 
on  the  shores  of  Japan  there  was  little  or  no  possibility  of 
getting  friendly  assistance.  Not  long  before  the  negotiation 
of  the  treaty  with  the  United  States,  the  Japanese  had 
gratified  their  curiosity  respecting  foreigners  by  carrying 
about  shipwrecked  American  seamen  for  exhibition  in 
wooden  cages! 

Another  circumstance  that  -made  a  treaty  with  Japan 
desirable  was  that  upon  the  acquisition  of  California  by  the 
United  States  a  new  interest  in  the  commerce  of  the  Far 
East  arose,  and  it  was  hoped  that  the  Japanese  would  con- 
sent to  supply  trans-Pacific  steamships  with  coal,  for  with- 
out this  cooperation  steam  navigation  across  the  Pacific  was 
thought  to  be  impracticable. 

These  details  not  only  explain  the  occasion  for  the  treaty 
concluded  by  Commodore  Perry  on  May  31,  1854,  but  also 
indicate  its  real  objects.  Its  first  importance  was,  of  course, 
that  it  brought  Japan  into  treaty  relations  with  a  friendly 
western  power,  whereas  Japan  had,  up  to  that  time,  made  no 
treaty  with  any  western  state.  It  granted  the  United  States 
the  right  to  appoint  consuls  or  agents  to  reside  in  the  city  of 
Simoda.  Simoda  and  Hakodade  were  to  be  open  for  a 
limited  trade  and  for  the  refitting  and  supplying  of  ships. 
Within  seven  and  five  Japanese  miles  of  these  ports  re- 
spectively Americans  were  to  be  free  to  travel  at  their 
pleasure;  and  this  was  a  notable  concession,  for  the  Chinese 
and  Dutch  traders  at  Nagasaki  had  been  actually  secluded 


THE  HARRrS  TREATIES  OF  1857,  1858  37 

within  stockades.  But  it  is  chiefly  worthy  of  note  that  the 
Perry  treaty  of  1854  contained  no  provision  whatever  as  to 
extraterritorial  privileges  or  consular  jurisdiction.  There 
was,  however,  a  provision  among  the  twelve  regulations 
made  in  amplification  of  the  treaty  that  Americans  who 
were  found  "transgressing  Japanese  laws"  might  be  appre- 
hended "by  the  police  and  taken  on  board  their  ships."  ^  The 
suggestion  of  including  this  regulation  appears  to  have 
arisen  from  the  commission  of  a  crime  by  an  American  sea- 
man at  the  Lew  Chew  Islands,  then  assumed  not  to  be  under 
Japanese  sovereignty,  while  Commodore  Perry's  squadron 
was  stationed  near  those  islands  during  an  interval  in  the 
negotiations  with  Japan.  A  separate  treaty,  including  a 
provision  that  American  offenders  should  be  reported  to  the 
captain  of  the  ship  to  which  they  belonged,  was  concluded 
by  Commodore  Perry  with  the  government  of  Lew  Chew, 
July  11,  1854.- 

The  first  American  representative  in  Japan  was  Townsend   Treaties 
Harris,  a  merchant  of  New  York  City,  who  had  been  making  isss,  nego- 
extensive  trading  voyages  in  the  Far  East  for  several  years  Towns-' 
previous  to  his  appointment  in  1855.     Mr.  Harris  was  first  ris 
appointed  as  consul-general  in  Japan  with  commissions  to 
negotiate  new  treaties  with  both  Japan  and  Siam.     He  was 
eminently  successful  in  both  negotiations.     His  career  in 
Japan  was  distinguished  for  ability,  justice  and  honor.     In 
negotiating  the  Japanese  treaties  of  June  17,  1857,  and  July 
29,  1858,^  Mr.  Harris,  truly  representing  the  disposition  of 
his  government  toward  Japan,  displayed  so  fair  and  generous 
a  spirit,  that  these  treaties,  the  first  of  a  series  of  commer- 
cial treaties  with  western  powers,  were  regarded  with  the 

1  Sen.  Ex.  Doc.  34,  p.  161   (vol.  6),  33d  Cong.,  2d  Sess. 

2  The  British  treaty  of  October  14,  1854,  provided  that  British  sub- 
jects In  Japan  should  be  subject  to  the  laws  of  Japan  and  that  British 
offenders  should  be  punished  under  British  jurisdiction;  Brit,  and  For. 
State  Papers,  vol.  44,  p.  02. 

'The  treaty  of  1857  provided  for  jurisdiction  of  crimes  only, 
that  of  1858  for  jurisdiction  of  both  civil  and  criminal  cases.  The 
British  treaty  of  August  26,  1858,  was  more  in  detail,  and  the 
Austro-Hungarian  treaty  of  October  8,  1869,  was  the  most  elab- 
orate   of   all    treaties    made    with   Japan.      In    his   later   years   Mr. 


SIAM,  MADAGASCAR,  KOREA 


Siam, 
1833,    1856 


Mada- 
gascar, 
1867,  1881 


Korea, 
1883 


greatest  satisfaction  by  the  Japanese  authorities,  and,  being 
models  for  the  European  treaties,  they  actually  served  to 
protect  Japanese  interests  to  such  an  extent  that  Mr.  Harris 
was  thought  of  as  a  national  benefactor  of  Japan.  As  the 
Harris  treaties  were  the  first  commercial  treaties  with 
Japan,  they  were  also  the  first  to  introduce  extraterritorial- 
ity. Neither  Mr.  Harris  nor  the  Japanese  authorities  at  the 
time  regarded  these  extraterritorial  privileges  as  a  marked 
disparagement  to  Japanese  sovereignty,  although  Mr.  Harris 
in  his  diary  expressed  surprise  that  the  privileges  were  so 
readily  granted.  ^  What  was  the  immediate  cause  for  intro- 
ducing them  does  not  appear.  The  correspondence  relating 
to  the  negotiations  has  not  been  published.  The  privilege  of 
having  the  treaty  revived  in  1873  or  later  was  reserved,  but, 
notvrithstanding  the  desire  of  Japan,  this  treaty  and  the 
treaties  with  other  powers  of  approximately  the  same  date 
remained  in  force  as  to  their  extraterritorial  provisions  until 
July  16,  1899. 

Mr.  Harris's  negotiations  with  the  Siamese  government 
while  he  was  en  route  to  Japan  resulted  in  the  treaty  of  May, 
29,  1856,  which  amplified  and  modified  to  a  large  degree  the 
privileges  secured  by  the  treaty  negotiated  by  Captain 
Eoberts  in  1833.  The  treaty  of  1833  had  not  made  a  direct 
grant  of  extraterritoriality;  the  treaty  of  1856  made  a  grant 
of  it  in  its  fullest  form,  and  this  treaty  of  1856  is  the  basis 
of  American  foreign  jurisdiction  in  Siam  to-day. 

The  native  government  of  Madagascar  entered  into  a 
treaty  with  the  United  States  on  February  14,  1867,  and 
made  a  new  treaty  on  May  13,  1881,  which  defined  consular 
judicial  prerogatives  with  extraordinary  detail.  Since  1896 
Madagascar  has  been  a  colony  of  France.- 

After  several  attempts  to  enter  into  treaty  relations  with 
Korea  the  treaty  of  May  23,  1883,  was  negotiated.  The 
special  envoy  of  the  United  States  was  Commodore  Shufeldt, 


Harris  said  tiiat  the  extraterritoriaUty   of   Americans   in   Japan   was 
against  liis  conscience;   Griffis,   Townsend  Harris,   Boston,   1S96,   p.   332. 

*  Griffis,  Townsend  Harris,  p.  124. 

'  Infra,   p.  179. 


BORNEO,  SAMOA,  TONGA  39 

and  the  negotiations  were  facilitated  by  the  support  and  in- 
fluence of  Li  Hung  Chang.  This  was  the  first  treaty  between 
Korea  and  a  western  power,  the  British  and  German  treaties 
being  of  a  date  eighteen  months  later.  The  fourth  article  of 
the  American  treaty  contains  a  provision  which  is  thought 
not  to  have  been  inserted  in  any  earlier  treaty  with  any 
oriental  state,  namel}^  that  extraterritoriality  shall  be  relin- 
quished when,  in  the  Judgment  of  the  United  States,  the  re- 
form of  the  laws  and  of  the  administration  of  justice  in 
Korea  justify  relinquishment;  a  similar  provision  is  made 
in  the  protocols  appended  to  the  British  and  French  treaties. 

A  treaty  was  made  with  the  Sultan  of  Borneo,  June  23,  go^neo, 
1850,  and  it  is  still  in  force,  although  the  island  is  now  en- 
tirely included  within  British  and  Dutch  protectorates.  The 
Borneo  treaty  is  peculiar  in  that  it  gives  the  American  con- 
sul jurisdiction  over  disputes  arising  between  American 
citizens  and  subjects  of  the  Sultan  irrespective  of  the  na- 
tionality of  the  defendant  and  absolutely  prohibits  in- 
terference in  any  litigation  before  the  consul  whatever  the 
nature  of  the  case. 

On  January  17,  1878,  a  treaty  was  made  with  Samoa.  Samoa, 
This  treaty  was  negotiated  at  Washington  and  signed  by  the 
Secretary  of  State  himself.  The  Samoan  Islands,  were 
divided,  however,  by  a  treaty  between  the  United  States, 
Great  Britain  and  German)^  December  2,  1899,  under  which 
the  rights  and  claims  of  Great  Britain  were  renounced  as  to 
the  entire  group  of  islands  and  the  rights  and  claims  of  the 
United  States  and  Germany  restricted  to  separate  groups  of 
the  islands. 

On  October  2,  1886,  a  treaty  with  the  Tonga  Islands  was   Tonga, 
concluded.     These  islands  became  a  protectorate  of  Great 
Britain  in  1899,  and  in  1904  the  native  authorities  trans- 
ferred the  legal  and  financial  administration  to  the  British 
government. 

None  of  the  treaties  between  the  United  States  and  the 
Hawaiian  Islands  contained  provisions  for  extraterritorial 
jurisdiction.  In  the  treaty  of  October  21,  1862,  with  Liberia 
the  United  States  engages,  if  desired,  to  give  assistance  with 


40 


TREATIES  NOW  IN  FORCE 


Enumer- 
ation of 
the 

treaties 
In  force 


a  military  force  in  bringing  aboriginal  inhabitants,  aggres- 
sors upon  the  peace  of  Liberia,  to  justice.  The  exercise  of 
jurisdiction  in  the  Congo  Free  State  appears  not  to  be  well 
determined;  it  was  much  discussed  in  1896  in  the  trial  of 
Major  Lothaire.^  The  rapid  partition  of  Africa  and  the 
groups  of  islands  of  the  South  Pacific  Ocean  among  Euro- 
pean powers  has  narrowed  the  application  of  the  provision  of 
the  Eevised  Statutes  that  jurisdiction  may  be  exercised  in 
barbarous  or  uninhabited  countries  not  governed  by  any 
recognized  authority. 

The  many  changes  in  the  international  relations  of  the 
oriental  states  with  which  the  United  States  has,  during  the 
course  of  the  past  century,  negotiated  treaties  of  extra- 
territoriality, have  greatly  reduced  the  number  of  those 
treaties  and  caused  some  of  them,  though  remaining  in 
force,  to  be  modified  in  operation.  The  extraterritorial 
jurisdiction  has  been  formally  relinquished  in  Algiers  and 
Tunis,  Servia,  Madagascar  and  Japan  and  a  portion  of 
Samoa,  and  impliedly  relinquished  in  Eoumania;  it  is  sus- 
pended as  to  certain  civil  cases  in  Egypt,  and  fully  sus- 
pended within  the  areas  of  North  China  leased  to  European 
powers;  it  is  subject  in  greater  or  less  degree  to  modification 
or  suspension  in  the  protectorates  of  Zanzibar,^  Borneo  and 
Tonga,  and  in  the  special  spheres  of  influence  of  France  and 
Italy  extending  over  Morocco  and  Tripoli ;  it  is  still  exercised 
in  Persia,  Maskat,  Siam,  Korea,  China  and  Turkey;  and  in 
Turkey  and  China  it  is  frequently  exercised  and  of  great 
importance. 


1  Archives  dipIomatIq,ues,  1896.  pt.  3.  p.  166. 
»  Supra,  p.  20,  and  infra,  p.  181. 


Ill 


ACTS    OF    CONGRESS 
ESTABLISHING    THE     SYSTEM    OF 
CONSULAR  COURTS 


The  earliest  Act  of  Congress  relating  to  consular  juris- 
diction in  the  Orient  was  that  of  August  11,  1848.^  In  re- 
porting the  bill  the  Senate  Judiciary  Committee  stated  that 
the  measure  was  considered  necessary  to  the  execution  of 
the  treaty  with  China  of  1844  and  that  the  course  of  action 
in  the  British  Parliament  had  been  examined.^ 

The  next  legislation  was  that  of  June  22,  I860.'  It  was 
occasioned  by  the  newly  -made  treaties  with  China,  Japan 
and  Siam,  Like  its  predecessor  it  was  enacted  without  de- 
bate. It  extensively  amplified  and  improved  the  earlier  leg- 
islation, and,  together  with  the  Act  of  July  1,  1870,*  relating 
to  appeals  in  certain  cases,  formed  the  basis  of  the  law  as 
embodied  in  the  Eevised  Statutes,  Sections  4083-4130.^ 

These  statutes  have  been  importantly  modified  by  the  Act 
of  June  30,  1906,  creating  a  United  States  court  for  China.*' 

It  is  repeatedly  declared  in  these  statutes  that  they  are 
intended  to  carry  into  effect  the  treaties  which  have 
granted  extraterritorial  jurisdiction.'^     The  jurisdiction  as 

19  Stat,  at  Large,  276. 

» Congressional  Globe,  30th  Cong.,  1st  Sess.,  p.  648-9,  665,  822,  1008. 

« 12  Stat,  at  Large,  72.  The  bill  that  became  the  Act  of  1860  was  pre- 
pared in  the  Department  of  State;  for  the  action  of  Congress  upon  it, 
see  Congressional  Record,  36th  Cong.,  1st  Sess.,  p.  2167,  3218.  A  general 
reorganization  of  the  consular  system  had  taken  place  under  the  Act 
of  August  18,  1856;  11  Stat,  at  Large,  52. 

«16  Stat,  at  Large,  183. 

» Rev.  Stat.  Sec.  4083-4130  are  printed  infra.  Appendix  II.  The  Act  of 
April  5,  1906,  reorganizing  the  consular  system,  will,  in  connection 
with  the  Act  of  June  30,  1906,  and  the  Executive  Order  of  June  27, 
1906,  effect  much  improvement  of  the  exercise  of  judicial  functions 
by  consuls  in  the  Orient;  the  Act  is  printed  infra.  Appendix  III-l. 

»  The  Act  is  printed  infra.  Appendix  III-2. 

T  Sec.  4083,  4085,  4086,  4100,  4108.  4117,  4125,  4127,  4129. 


Act  of 
1S48 


Act  of 
1860,   em- 
bodied In 
Revised 
Statutes, 
Sec.  4083- 
4130 


Sum- 
mary  of 
th«   pres- 
ent sta- 
tutes 


42 


RELATION  OF  STATUTES  TO  TREATIES 


Relation 
of  the 
statutes 
to  the 
treaties 


provided  for  in  China,  Japan,  Siam,  Egypt  and  Madagascar 
is  described  with  some  fullness,  and  the  differences  in  juris- 
diction in  other  countries  are  described  separately.^  The 
provisions  of  the  Act  extend  to  Turkey,  under  the  treaty 
of  1830,  so  far  as  they  relate  to  the  punishment  of  crimes, 
and  also  in  relation  to  civil  controversies  wherein  civil  juris- 
diction is  permitted  under  usages  existing  in  Turkey  or 
under  the  laws  of  Turkey.-  The  provisions  extend  to  Persia 
in  respect  to  all  suits  and  disputes  between  American  citi- 
zens in  Persia;  but  mixed  cases  involving  Persians  as  plain- 
tiffs or  defendants  in  civil  or  criminal  actions  are  to  be  tried 
in  Persian  tribunals,  the  consular  officer  being  obliged  to 
attend  in  person  for  the  purpose  of  seeing  that  justice  is 
administered ;  and  mixed  cases  involving  citizens  of  the  Unit- 
ed States  and  subjects  of  other  foreign  powers  are  to  be  tried 
under  regulations  mutually  agreed  upon  between  the  min- 
isters of  the  United  States  and  other  powers  in  Persia, 
respectively,  which  regulations  shall  be  submitted  to  the 
Secretary  of  State.^  Again,  the  provisions  of  the  statutes 
extend  to  Tripoli,  Tunis,  Morocco,  Maskat  and  the  Samoan 
Islands  so  far  as  they  conform  to  existing  treaties  and  to 
the  established  usages  in  those  countries  in  respect  to  inter- 
course with  foreigners;  and  whenever  the  United  States 
shall  negotiate  a  treaty  of  extraterritoriality  with  any 
foreign  government  the  provisions  of  the  statutes,  so  far  as 
applicable,  shall  extend  to  that  country.*  The  consuls  and 
commercial  agents  of  the  United  States  at  islands  or  in 
countries  not  inhabited  by  any  civilized  people  or  recognized 
by  any  treaty  with  the  United  States  are  also  authorized  to 
exercise  extraterritorial  jurisdiction  in  criminal  cases  and  in 
civil  cases,  except  where  the  debt  or  damages  exceed  $1,000.' 


1  Sec.  4083-7,   4125-7. 

*  Sec.  4125.  It  was  necessary  to  state  the  law  in  this  way,  because 
the  treaty  with  Turkey  had  made  no  specific  grant  of  jurisdiction  in 
civil  cases. 

3  Sec.  4126.  It  is  in  respect  only  to  Turkey  and  to  Persia  that  the 
language  of  the  statutes  suggests  the  language  of  the  treaties. 

*  Sec.  4127. 

» Sec.  4083.  The  grade  of  commercial  agent  is  abolished;  Act  of 
April  5,  1906,  Sec.  3;  Infra,  Appendix  III-l. 


WHAT  LAW  TO  BE  ENFORCED 


43 


The  second  leading  feature  of  these  statutes  is  that  they 
set  forth  what  law  is  to  be  applied  in  consular  courts.^  The 
jurisdiction  in  both  cri'minal  and  civil  matters  is  to  be  ex- 
ercised and  enforced  in  conformity  with  the  laws  of  the 
United  States,  which  are,  by  these  statutes,  and  so  far  as 
necessary  and  suitable  under  the  treaties,  extended  over  all 
citizens  of  the  United  States  in  those  countries  and  over  all 
others  who  may  have  the  right  of  American  protection.^  If 
the  laws  of  the  United  States,  the  statutes  continue,  are  not 
adapted  to  the  object  of  the  treaties,  or  are  deficient  in  the 
provisions  necessary  to  furnish  suitable  remedies,  the  com- 
mon law  ^  and  the  law  of  equity  and  admiralty  shall  extend 
in  like  manner  over  citizens  and  other  protected  persons  in 
those  countries ;  and  if  neither  the  common  law,  nor  the  law 
of  equity  or  admiralty,  nor  the  statutes  of  the  United  States 
furnish  appropriate  and  sufficient  remedies,  the  American 
ministers  in  those  countries,  respectively,  shall  issue  regu- 
lations which  shall  supply  such  defects  and  deficiencies  and 
shall  have  the  force  of  law. 

The  Act  of  June  30,  1906,  in  prescribing  the  jurisdiction 
of  the  United  States  court  for  China,  impliedly  removes  all 
jurisdiction  and  the  power  of  making  regulations  from  the 
minister  to  China;  it  confers  this  jurisdiction  and  power 
upon  the  judge  of  the  United  States  court  for  China.* 

With  some  detail  the  statutes  specify  that  certain  matters 
of  procedure,^  which,  in  the  United  States,  are  provided  for 
in  the  law  of  the  several  commonwealths,  are  to  be  pre- 
scribed in  the  regulations  issued  by  the  ministers;  and 
further  regulations  are  to  be  made  from  time  to  time,  under 
the  provisions  of  the  statutes,  as  the  exigency  may  demand.^ 


What 
law  en- 
forceable 


Nature  of 
the  regru- 
lations 
to  be 
publish- 
ed by  th« 
minis- 
ters 


'  Sec.   4086,   4117-20,   4126. 

2  This  provision  shows  that  the  systems  of  civil  and  criminal  law 
which  operate  in  the  several  states  of  the  American  federal  union, 
have  no  operation  whatever  under  the  extraterritorial  Jurisdiction  ex- 
cept so  far  as  is  permitted  by  the  federal  statutes. 

'  When  the  bill  that  became  the  Act  of  184S  was  before  the  Senate, 
the  question  was  asked:  How  could  the  United  States  be  said  to 
have   a   'common   law'?   infra,   p.    50-2. 

*  Sec.  1,   2,   3,   4,   5;   see  Appendix  III-2. 
■>  Sec.  4117;    see    also   4084,    4087,    4089. 

•  Sec.  4117. 


44  REGULATIONS  ISSUED  BY  MINISTERS 

In  making  the  regulations  the  ministers  are  to  request  and 
consider  the  opinions  of  the  consuls  or  of  so  many  of  them 
as  can  be  conveniently  assembled  or  can  be  consulted  with- 
out prejudicial  delay  or  inconvenience;  and  the  assent  or 
dissent  of  the  consul  shall  be  signified  in  writing.  After 
thus  advising  with  the  consuls  the  minister  may  publish 
the  regulation  with  his  signature  thereto  and  the  opinions 
of  his  advisers  inscribed  thereon,  and  such  publication  shall 
make  the  regulation  binding  and  obligatory  from  the  date  of 
its  publication  or  from  any  subsequent  date  named  in  it,  and 
thus  it  shall  have  the  force  of  law  until  annulled  or  modified 
by  Congress.^  Every  such  regulation,  as  speedily  as  may  be 
after  its  publication,  is  to  be  transmitted  by  the  minister 
The  regu-  with  the  opinions  of  his  advisers,  as  drawn  by  him,  to  the 
submitted  Secretary  of  State  to  be  laid  before  Congress  for  revision.^ 
grass  ""  The  minister  may  issue  all  manner  of  writs  to  prevent  citi- 
zens of  the  United  States  from  enlisting  in  the  military  or 
naval  service  of  the  country  to  make  war  upon  any  foreign 
power  with  whom  the  United  States  are  at  peace,  or  in  the 
service  of  one  portion  of  the  people  against  any  other  por- 
tion of  the  same  people ;  and  he  may  carry  out  this  power  by 
a  resort  to  such  force  belonging  to  the  United  States  as  may 
at  the  time  be  within  his  reach.^  The  minister  shall  prepare 
a  form  of  submission  for  civil  cases,  which,  by  mutual  agree- 


1  Sec.  4117,  4118.  The  principal  regulations  for  Turkey  and  China  were 
drawn  up  by  the  consuls-general  in  Constantinople  and  Shanghai. 
The  public  documents  show  tha.t  the  earlier  regulations  for  China 
were  made  with  the  formality  prescribed  by  law  respecting  the  ex- 
pression of  assent  thereto  or  dissent  therefrom  on  the  part  of  the 
consuls.  No  regulations,  it  Is  believed,  have  been  annulled  or  modi- 
fied by  Congress,  not  even  certain  regulations  for  Japan,  which 
the  Secretary  of  State  disapproved;  infra,  p.  54.  Similarly  Con- 
gress did  not  annul  or  modify  the  regulations  of  March  8,  1856, 
for  China,  relating  to  the  exercise  of  judical  functions  by  vice- 
consuls;  they  had,  however,  been  disapproved  by  Attorney-Gen- 
eral Cushing.  In  1858  a  resolution  was  adopted  in  the  Senate 
to  confirm  the  regulations  for  China  of  March  4,  1857;  Congres- 
sional Globe,  35th  Cong.,  1st  Sess.,  pt.  2,  p.  1203,  1555.  In  all 
other  instances  the  action  of  Congress  has  been  confined  to  refer- 
ence  to   a  committee   and   order   to   be   printed. 

A   table   of   the   regulations   is   printed   infra.    Appendix  XI-1. 

»  Sec.  4119. 

»  Sec.  4090. 


WHAT   OFFICIALS    HAVE   JURISDICTION 


45 


ment  of  the  parties  to  the  controversy,  are  to  be  settled  by 
decision  of  referees.^  He  shall  also  establish  a  tariff  of  fees 
for  judicial  services  and  shall  direct  by  whom  and  to  whom 
they  shall  be  paid,  and  the  proceeds  of  these  shall,  as  far  as 
is  necessary,  be  applied  to  defray  the  expenses  incurred 
under  these  statutes,  and  regular  accounts  shall  be  trans- 
mitted annually  to  the  Secretary  of  State.^  The  minister  to 
Persia  is  specifically  empowered  to  agree  upon  regulations 
with  ministers  of  other  powers  to  Persia  for  the  adjudication 
of  mixed  cases  arising  between  foreigners  of  different  na- 
tionalities in  that  country.^ 

The  third  essential  feature  of  the  statutes  is  that  they 
invest  with  certain  judicial  authority  *  the  ministers  and  con- 
suls duly  appointed  to  reside  in  the  countries  where  extra- 
territoriality exists.^  If  there  is  no  minister  so  appointed  to 
reside  in  a  particular  country,  his  judicial  authority  and  the 
obligation  to  discharge  the  duties  connected  with  it,  devolve 
upon  the  Secretary  of  State.®  The  word  'minister'  here 
used  is  declared  to  mean  the  person  invested  with  and  ex- 
ercising the  principal  diplomatic  functions;  and  the  word 
'consul,'  any  person  invested  by  the  United  States  with, 
and  exercising,  the  functions  of  consul-general,  vice  consul- 
general,  consul  or  vice-consulJ  These  officers  are  declared 
to  be  responsible  to  the  United  States  and  to  the  laws 
thereof  in  the  performance  of  their  judicial  duties.*  The 
ministers  have  authority  to  exercise  jurisdiction  wherever 
they  may  be  in  the  countries  in  which  they  are  appointed  to 
reside.®    The  consuls  have  such  authority  at  the  ports  where 


Con- 
ferring 
of  judi- 
cial au- 
thority 
upon  in- 
cum- 
bents  of 
certain 
offices 


1  Sec.  4098. 
'  Sec.  4120. 
3  Sec.  4126. 

*  The  title  of  the  Act  of  1860  read  'giving  certain  judicial  powers.' 

'  Sec.  4083,  4084,  4085.  See  list  of  legations,  court,  and  consulates, 
Appendix  XI-3. 

•  SecT  4128. 

^  Sec.  4130;  see  also  Sec.  1674.  By  Sec.  4088  commercial  agents  resi- 
dent in  civilized  countries  are  also  included  among  officers  having 
Judicial  authority. 

»  Sec.  4110. 

»  Sec.  4108. 


46 


SOLE  POWERS   OF  A  CONSULAR  JUDGE 


Settle- 
ment of 
certain 
cases 
without 
resort  to 
nu- 
tation 


Juris- 
diction 
of  a  con- 
sul act- 
ing alone 


their  consulates  are  situated.^  The  jurisdiction  of  the  min- 
isters is  appellate  only,  except  that  in  capital  cases  for  mur- 
der or  insurrection  against  the  government  of  the  country, 
in  case  of  offenses  amounting  to  felony  under  the  laws  of  the 
United  States,  and  in  cases  where  a  consular  officer 
is  interested,  either  as  party  or  witness,  the  -minister  is  to 
have  original  jurisdiction.^ 

In  the  fourth  place  the  statutes  declare  it  to  be  the  duty 
of  ministers  and  consuls  to  encourage  the  settlement  of  con- 
troversies of  a  civil  character  by  mutual  agreement  or  by 
submitting  them  to  the  decision  of  referees  agreed  upon  by 
the  parties;  the  manner  in  which  referees  shall  hear  and 
decide  such  cases  and  consuls  shall  signify  their  acceptance 
of  the  decisions  and  cause  them  to  be  executed,  is  specified  in 
detail;  but  at  any  time  before  the  award  of  the  referees  is 
returned  to  the  consul,  it  is  permitted  the  parties  to  settle 
the  difficulty  themselves.^  In  criminal  cases  which  are  not 
of  a  heinous  character,  it  is  lawful  for  the  parties  aggrieved 
or  concerned  therein,  with  the  assent  of  the  minister  or  con- 
sul, to  adjust  and  settle  the  same  among  themselves  upon 
pecuniary  or  other  consideration.* 

Fifthly,  it  is  provided  that  the  consul  sitting  alone  as 
judge  for  the  trial  of  offenses  or  misdemeanors  shall  decide 
finally  all  cases  where  the  fine  imposed  does  not  exceed  f  100 
or  the  term  of  imprisonment  sixty  days,^  and  it  is  lawful  for 
him  sitting  alone  to  decide  all  cases  in  which  the  fine  im- 
posed does  not  exceed  $500  or  the  term  of  imprisonment 
ninety  days;  but  if  the  fine  exceed  |100  or  the  term  of  im- 
prisonment sixty  days,  the  case  may  be  taken  by  appeal 
before  the  minister,  if  allowed  jurisdiction.^     All  civil  cases 


>  Sec.  4085,  4087;  under  the  Act  of  June  30,  1906,  the  judicial  powers 
of  the  minister  in  China  are  transferred  to  the  judge  of  the  United 
States  court  for  China,  and  certain  powers  of  the  consuls  are  likewise 
transferred  to  this  court. 

»  Sec.  4109. 

•  Sec.  4098. 

•  Sec.  4099. 
»  Sec.  4106. 

•  Sec.  4089. 


ASSOCIATES  TO  CONSUL  AS  JUDGE  47 

wherein  the  damages  do  not  exceed  $500  may  be  decided  by 
the  consul  without  aid  and  finally.^ 

The  United  States  court  for  China  has  exclusive  juris- 
diction in  all  cases  except  that  consuls  continue  to  have  juris- 
diction as  formerly  in  civil  cases  of  not  more  than  |500 
value  and  in  criminal  cases  punishable  by  |100  fine  or  sixty 
days'  improsinment  or  both;  and  consuls  have  power  to 
arrest,  examine,  and  discharge  accused  persons  or  commit 
them  to  the  said  court.  From  all  final  judgments  of  the 
consular  court  either  party  may  appeal  to  the  United  States 
court  for  China. 

Sixthly,  the  statutes  provide  that  the  consul  may  be  as-  His  juris- 

T     1  ■    •  J!    diction 

sisted  upon  the  trial,  either  civil  or  criminal,  by  citizens  of   when  as- 
^  '  »  -,  T  sisted   oy 

the  United  States  who  shall  be  of  good  repute  and  com-    citizen 

petent  for  the  duty  and  who  shall  be  chosen  by  lot  from  a  elates  on 
list  previously  approved  by  the  minister,  with  the  additional 
requirement  in  civil  cases  that  these  citizens  be  resident  at 
the  port.  The  number  of  associates  in  criminal  cases  is  to 
be  one  or  more,  in  capital  cases  not  less  than  four,  and  in 
civil  cases  not  less  than  two  nor  more  than  three.  The  con- 
sul is  to  summon  associates  to  sit  with  him  on  the  trial  when- 
ever, by  reason  of  legal  questions  involved  in  the  case,  he  is 
of  opinion  that  assistance  will  be  useful,  or  whenever,  in 
criminal  cases,  certain  severe  punishments  will  be  required 
or  whenever  in  civil  cases  the  damages  demanded  exceed 
1500.  The  associates  are  to  enter  upon  the  record  their 
several  opinions  and  their  assent  to  or  dissent  from  the  judg-  associ- 
ment,  but  the  consul  alone  is  to  give  judgment  in  the  case.  senj:^or 

If  the  consul  and  his  associates  concur  in  the  opinion,  the  from  the 

.    .  ,    judgrment 

decision  in  all  civil  and  criminal  cases,  except  m  cases  of 

capital  offenses,  shall  be  final.  If,  in  a  criminal  case,  any 
of  the  associates  differ  in  opinion  from  the  consul,  the  case, 
without  further  proceedings  and  together  with  the  evidence 
and  opinions,  shall  be  referred  to  the  minister  for  his  ad- 
judication, and  he  may  either  enter  up  judgment  therein  or 
remit  the  case  to  the  consul  with  instructions  how  to  proceed 
therewith.    If,  in  a  civil  case,  any  of  the  associates  differ  in 

1  Sec.  4107. 


48         CAPITAL  OFFENSES,  APPEALS  IN  CIVIL  CASES 


JuriS' 
diction 
of  the 
minister 


Capital 
ofCensea 
and   jur- 
isdiction 
of  them 


opinion  from  the  consul,  either  party  to  the  case  may  appeal 
to  the  minister;  but  if  no  appeal  is  lawfully  claimed  under 
the  regulations  for  appeal,  the  decision  of  the  consul  shall 
be  final.^ 

These  provisions  allowing  consuls  to  summon  associates 
have  no  application  to  the  United  States  court  for  China.^ 

Seventhly,  the  statutes  empower  the  minister  to  decide 
finally  any  case  brought  before  him  by  appeal,  either  upon 
the  evidence  which  comes  up  with  it  or  upon  hearing  the 
parties  further,  if  he  thinks  justice  will  be  promoted  there- 
by; and  he  may  also  prescribe  the  rules  upon  which  new 
trials  onay  be  granted  either  by  the  consuls  or  by  himself  if 
asked  for  upon  sufficient  grounds.^ 

The  Act  of  June  30,  1906,  impliedly  transfers  the  judicial 
authority  of  the  minister  to  China  to  the  judge  of  the  United 
State  court  for  China,  and  gives  the  judge  of  this  court 
power  to  modify  and  supplement  the  rules  of  procedure  pre- 
vailing in  the  consular  courts  of  China  under  the  statutes.* 

Eighthly,  it  is  provided  that  the  trial  for  insurrection  or 
rebellion  against  the  government  of  the  country,  with  intent 
to  subvert  the  same,  and  the  trial  for  murder  may  be  origin- 
ally held  either  in  the  court  of  the  minister  or  in  the  court 
of  a  consul  sitting  with  associates;  no  person  may  be  con- 
victed of  either  of  those  crimes  unless  the  consul  and  his 
associates  concur  in  opinion  and  the  minister  also  approves 
the  conviction;  and  it  is  lawful,  if  one  is  put  upon  trial  for 
either  of  these  crimes,  to  convict  him  of  a  less  offense  of 
similar  character.^  Whenever  any  persons  is  convicted  of 
either  of  the  crimes  punishable  with  death,  it  becomes  the 
duty  of  the  minister  to  issue  his  warrant  for  the  execution 
of  the  convict,  appointing  the  time,  place  and  manner;  but 
if  the  minister  is  satisfied  that  the  ends  of  public  justice 
demand  it,  he  may  from  time  to  time  postpone  such  exe- 
cution;   and   if    he    finds    mitigating   circumstances   which 


»  Sec.  4106,  4107. 
»  Sec.  5. 
»  Sec.  4091. 
*  Sec.  1,  2,  5. 
»  Sec.  4102. 


EXECUTION  OF  JUDGMENTS  49 

authorize  it,  he  may  submit  the  ease  to  the  President  for 
pardon.^  The  punishment  of  all  other  crimes  is  by  fine  or 
imprisonment.^ 

Ninthly,  the  statutes  made  provision  (no  longer  in  force)    former 
that  on  any  final  judgment  in  a  consular  court  of  China    j^-te^^,^^" 
where  the  matter  in  dispute  exceeded  |500,  and  did  not    of^the 
exceed  |2,500,  exclusive  of  costs,  appeal  should  be  allowed  to    co^urt  in 
the  minister  ^  and  where  the  matter  in  dispute,  exclusive  of    fornia 
costs,  exceeded  |2,500,  an  appeal  from  a  final  judgment 
either  in  a  consular  court  or  in  the  court  of  a  minister,  in 
China,  if   he   gave   judgment  in   the   exercise   of   original 
jurisdiction,  should  be  allowed  to  the  circuit  court  for  the 
district  of  California.    Upon  such  appeal  a  transcript  of  all 
the  proceedings  in  the  cause  was  to  be  transmitted  to  the  cir- 
cuit court,  and  no  new  evidence  was  to  be  received  on 
the  hearing  of  the  appeal;  the  appeal  should  be  subject  to 
the  rules,  regulations  and  restrictions  prescribed  in  law  for 
writs  of  error  from  district  courts  to  circuit  courts.*     When 
any    final     judgment     of     the     minister     to     China     was 
given  in  the  exercise  of  original  or  of  appellate  criminal 
jurisdiction,  the  person  charged  with  the  crime  or  offense,  if 
he  considered  the  judgment  erroneous  in  point  of  law,  might 
appeal  therefrom  to  the  circuit  court  for  the  district  of  Cali- 
fornia; but  such  appeal  was  not  to  operate  to  stay  proceed- 
ings unless  the  minister  certified  that  there  was  probable 
cause  to  grant  the  same,  when  the  stay  was  to  be  such  as  the 
interests  of  justice  might  require.^     Power  to  exercise  this 
appellate  jurisdiction  was  conferred  upon  the  circuit  court 
in  California  and  its  decisions  in  the  exercise  thereof  were 
declared  to  be  final.® 

1  Sec.  4103.  This  is  the  only  reference  in  Statutes  4083-4130  to  the 
subject  of  pardoning  criminal  offenses  committed  under  the  extra- 
territorial jurisdiction.  Authority  to  pardon  is  therefore  conferred 
solely  upon  the  President  and  restricted  to  capital  offenses. 

=  Sec.  4101. 

3  Sec.  4092. 

*  Sec.  4093,  4094.  The  statutes  include  Japan,  but  their  operation  with 
respect  to  Japan  ceased  on  July    17,  1899,  by  virtue  of  treaty;   infra.p.  188. 

»  Sec.  4095. 

«  Sec.  4096.  By  Act  of  March  3,  1891  (26  Stat,  at  L.  826,  Sec.  4),  creating 
the  "circuit  courts  of  appeal,"  appellate  jurisdiction  was  taken  from 
"circuit  courts"  and  no  new  provision  was  made  for  appeals  from  con- 
sular  courts   in   China;    Michigan    Law    Review,    March,    1900,    p.   345; 


50 


APPEALS  TO  U.  S.  COURT  FOR  CHINA 


Author- 
ity to 
execute 
and 

manner 
of  exe- 
cuting 
Judg- 
ments 


Effect  of 
Inter- 
national 

law 


From  all  final  judgments  of  consular  courts  in  China  and 
Korea  either  party  has  the  right  of  appeal  to  the  United 
States  court  for  China;  and  from  all  final  judgments  or 
decrees  of  this  court  appeals  lie  to  the  United  States  circuit 
court  of  appeals  of  the  ninth  judicial  circuit  and  thence  to 
the  Supreme  Court  of  the  United  States.^ 

Tenthly,  the  ministers  and  consuls  are  authorized  to  issue 
all  processes  suitable  and  necessary  to  carry  their  judicial 
powers  into  execution/  and  for  executing  such  processes 
marshals  are  appointed  under  authority  conferred  by  these 
statutes  upon  the  President,  and  the  duties  of  these  mar- 
shals and  their  liability  for  the  performance  of  their  duties 
are  prescribed.^  The  President  is  authorized  to  allow,  in  the 
adjustment  of  the  accounts  of  certain  consuls,  the  actual  ex- 
penses of  renting  prisons  for  American  convicts,  and  the 
wages  of  prison  keepers  and  constables.*  The  ministers  and 
consuls  are  fully  authorized  to  call  upon  the  local  govern- 
ment to  sustain  and  support  them  in  the  execution  of  the 
powers  confided  to  them  by  treaty,  and  on  their  part  to  do 
and  perform  whatever  is  necessary  to  carry  the  provisions  of 
the  treaties  into  effect,  so  far  as  they  are  to  be  executed  in 
these  countries  respectively.^ 

The  office  of  marshal  in  China  existing  under  Section 
4111  of  the  Eevised  Statutes  is  abolished.  The  Act  of  June 
30,  1906,  creates  the  office  of  marshal  of  the  United  States 
court  for  China.^ 

The  language  of  the  statutes,  'to  carry  into  full  effect  the 
provisions  of  the  treaties,'  is  a  recognition  of  the  fact  that 
the  specification  of  certain  powers  and  duties  of  ministers 
and  consuls  is  not  intended  to  exclude  them  from  the  enjoy- 
ment of  other  powers  and  the  performance  of  other  duties 


Nee  Chang  Mow  v.  George,  Shanghai.  1903,  cited  infra,  p.  62;  report 
of  the  Third  Assistant  Secretary  of  State,  Mr.  H.  H.  D.  Peirce,  October 
29,  1904,  p.  9;  supra,  p.  63  and  note  2.  The  question  has  not  been  before 
a  court  in  the  United  States  and  it  appears  not  to  have  been  con- 
sidered in  any  official  opinion  of  a  law-officer  of  the  government. 

>  Sec.  2,  3.     '  Sec.  4084,  4091.     »  Sec.  4111-6.    *  Sec.  412U4. 

»  Sec.  4100.     «  Sec.  6,  8. 


THE  TERM  COMMON  LAW 


51 


which  belong  to  them  under  particular  treaties  ^  or  by  virtue 
of  their  offices  as  defined  under  international  law."  It  is 
also  a  well-known  principle  that  treaties  which  are  complete 
in  themselves  need  no  supplemental  legislation.  It  was  so 
held  by  the  Supreme  Court  in  Daniese  v.  Hale  in  1875,  a 
case  in  which  the  exercise  of  judicial  functions  in  civil  cases 
in  Egypt  was  sustained.^  And  in  the  Ross  case  in  1890  the 
same  court  held  that  although  consular  courts  are  courts  of 
limited  jurisdiction,  the  treaties  and  statutes  pertaining  to 
their  jurisdiction  are  not,  by  construing  their  meaning  too 
narrowly,  to  be  so  restricted  as  to  defeat  their  purpose.* 

The  question  of  what  law  is  applicable  in  such  and  such 
cases  in  American  consular  courts  becomes  at  times  very 
difiicult  on  account  of  the  insufficiency  of  the  provisions  of 
the  present  statutes.  It  is  one  of  the  objects  of  these 
statutes  to  extend  over  citizens  in  certain  oriental  countries 
a  system  of  law  as  nearly  as  possible  like  the  system  to  which 
they  are  accustomed  in  their  own  country.  But  in  this 
country  the  ordinary  affairs  and  relations  of  life  are  subject 
to  the  law  of  the  commonwealth  or  state  in  which  a  citizen 
resides,  and  it  would  be  impossible  for  consular  courts  to 
administer  justice  according  to  the  diverse  systems  of  law  in 
force  in  the  various  states.  To  obviate  this  difficulty  the 
statutes  provide  definitely  upon  certain  points,  but,  upon  the 
great  body  of  legal  rights,  they  provide  only  that  the  com- 
mon law  and  the  law  of  equity  and  admiralty  shall  be  in 
force. 

What  does  the  term  common  law  used  in  this  relation 
signify?  The  supreme  court  of  California  in  Forbes  v. 
Scannel  ^  held  that  it  had  the  same  significance  in  respect  to 

1  See  also  Rev.  Stat.,  Sec.  1714,  1752.  This  is  supported  by  tlie  opin- 
ion of  Mr.  Justice  Story  in  regard  to  the  authority  of  consuls  in  non- 
judicial matters  in  construing  the  Act  of  April  14,  1792  (1  Stat,  at 
Large,  254)  in  Potter  v.  Insurance  Co.,  3  Summer  44. 

2  Upon  International  law  as  part  of  United  States  law.  see  the 
opinion  of  Mr.  Justice  Gray,  in  the  case  of  the  Paquete  Habana,  175 
U.  S.  677,  700. 

'91  U.   S.  13,  16.         «140  U.   S.  453  ,480. 

"  13  California  242.  The  question  under  discussion  was  what  law 
governed  a  certain  assignment  made  at  Canton,  China,  In  1856. 


Signi- 
ficance of 
the  term 
common 
law 


Chief 
Justice 
Mar- 
shall's 
state- 
ment 


52 


CUSHING'S    OPINION 


the  jurisdiction  of  consular  courts  that  it  had  been  held  by- 
Chief  Justice  Marshall  in  the  trial  of  Aaron  Burr  to  have  in 
respect  to  the  jurisdiction  of  federal  courts,  that  is,  it  re- 
ferred to  "those  general  principles  and  those  general  usages 
which  are  to  be  found,  not  in  the  legislative  acts  of  any  par- 
ticular state,  but  in  that  generally  recognized  and  long 
established  law,  which  forms  the  substratum  of  the  laws  of 
every  state" ;  ^  and  the  California  court  further  cited  an 
Attorney-  opinion  of  Attorney-General  Gushing  in  which  he  discussed 
"  '  the  provisions  of  the  Act  of  August  11,  1848,  and  said  of  the 
term  common  law  that  in  using  it  "the  statute  furnishes  a 
code  of  laws  for  the  great  mass  of  civil  or  municipal  duties, 
rights,  and  relations  of  men,  such  as,  within  the  United 
States,  are  of  the  resort  of  the  courts  of  the  several  states." 
But  Mr.  Gushing  admitted  that  the  statement  just  quoted 
did  not  specifically  explain  the  term,  for  he  went  on  to  say 
"it  was  not  enough  to  enact  that  the  common  law  should 
intervene  to  supply,  in  China,  deficiencies  in  the  law  of  the 
United  States.  For  the  question  would  be  sure  to  arise: 
What  common  law?  The  common  law  of  England  at  the 
time  when  the  British  colonies  were  transmuted  into  inde- 
pendent republican  States?  Or  the  common  law  of  Massa- 
chusetts? or  that  of  New  York,  or  Pennsylvania,  or  Vir- 
ginia?    For  all  these  are  distinct,  and  in  many  important 


^  The  question  before  the  court  was  whether  bail  was  demandable 
from  a  person  actually  in  custody  against  whom  an  indictment  for  a 
misdemeanor  had  been  found  by  a  grand  jury;  and,  as  conducing 
directly  to  a  decision  on  that  point,  a  second  question  was  discussed, 
whether  a  summons  or  a  capias  would  be  the  proper  process  to  bring 
the  accused  in  to  answer  the  indictment,  if,  in  point  of  fact,  he  was 
not  before  the  court. 

It  had  been  contended  that  since  Section  34  of  the  Act  of  September 
24,  1789,  as  to  the  judiciary,  required  the  adoption  by  the  federal 
courts  of  the  rules  of  decision  existing  in  the  laws  of  the  several  states 
In  trials  at  common  law  in  cases  where  they  apply,  the  established 
practice  of  Virginia,  where  the  court  was  sitting,  should  be  followed 
and  a  summons  issued  in  the  first  instance. 

But  the  court  said:  "It  might  certainly  be  well  doubted,  whether 
this  section,  if  It  should  be  construed  to  extend  to  all  the  proceedings 
In  a  case  where  a  reference  can  be  made  to  the  state  laws  for  a  rule 
of  decision  at  the  trial,  can  comprehend  a  case  where,  at  the  trial  in 
chief,  no  such  reference  can  be  made.  Now  in  criminal  cases  the  laws 
of  the  United  States  constitute  the  sole  rule  of   decision,  and    no    man 


TO  FOLLOW  FEDERAL  DECISIONS  53 

respects  diverse,  'common  law.'    To  dispose  of  this  difficulty,   'Common 
the  statute  went  one  step  further,  and  enacted  that  .  .  .  'de-  be  sup- 

,       , .  i         plement- 

crees  and  resrulations    may  he  made  irom  time  to  time  by  ed  by 

regula- 

the  commissioner,  which  shall  have  the  force  of  law,  and  tions 
supply  any  defects  or  deficiencies  in  the  common  law  and  the 
law  of  the  United  States.  This  power  of  supplementary  de- 
cree or  regulation  serves  to  provide  for  many  eases  of  crimi- 
nality, which  neither  federal  statutes  nor  the  common  law 
would  cover.  ...  In  certain  respects,  therefore,  the  com- 
missioner legislates  [italics  quoted]  for  citizens  of  the 
United  States  in  China'';  it  being  required  that  the  regula- 
tions shall  he  transmitted  "to  the  President  to  be  laid  before 
Congress  for  its  revision."  ^ 

The  Act  of  June  30,  1906,  relating  to  the  United  States 
court  for  China,  declares  that  when  the  laws  of  the  United 
States  are  deficient  in  provisions  necessary  to  give  juris- 
diction or  to  furnish  suitable  remedies,  the  common  law 

can  be  condemned  or  prosecuted  in  the  federal  courts  on  a  state  law. 
The  laws  of  the  several  states,  therefore,  cannot  be  regarded  as  rules 
of  decision  in  trials  for  offences  against  the  United  States.  It  would 
seem  to  me  too,  that  the  technical  term  'trials  at  common  law,'  used  in 
this  section,  is  not  correctly  applicable  to  prosecutions  for  crimes.  I 
have  always  conceived  them  to  be,  in  this  section,  applied  to  civil 
suits  as  contra-distinguished  from  criminal  prosecutions,  as  well  as  to 
suits  at  common  law  as  contra-distinguished  from  those  which  come 
before  the  court  sitting  as  a  court  of  equity  or  admiralty. 

"The  provision  of  this  section  would  seem  to  be  inapplicable  to  orig- 
inal process  for  another  reason.  The  case  is  otherwise  provided  for 
by  an  act  of  Congress.  The  14th  section  of  the  judicial  act  empowers 
the  courts  of  the  United  States,  'to  issue  all  writs  not  specially  pro- 
vided for  by  statute,  which  may  be  necessary  for  the  excercise  of 
their  respective  jurisdictions,  and  agreeable  to  the  principles  and 
usages  of  law.' 

"This  section  seems  to  me  to  give  this  court  power  to  devise  the 
process  for  bringing  any  person  before  it,  who  has  committed  an 
offence  of  which  it  has  cognizance  and  not  to  refer  it  to  the  state  law 
for  that  process.  The  limitation  on  this  power  is,  that  the  process 
shall  be  agreeable  to  the  principles  and  usages  of  law.  By  which  I 
understand  those  general  principles  and  those  general  usages  which 
are  to  be  found,  not  in  legislative  acts  of  any  particular  state,  but 
in  that  generally  recognized  and  long  established  law,  which 
forms  the  substratum  of  the  laws  of  every   state." 

From  these  premises  the  court  reasoned  that  the  proper  form  of 
process  to  issue  would  be  a  capias;  Doc.  230,  p.  184,  10th  Cong.,  1st  Sess., 
which  is  contained  in  President  Jefferson's  message  of  November  23, 
1807,  communicating  a  report  of  the  trial  of  Aaron  Burr. 

>  7  Opin.  Atty-Gen.  503. 


54 


SCOPE   OF   THE   REGULATIONS 


and  the  law  as  established  by  the  decisions  of  the  courts  of 
the  United  States  shall  be  applied  by  said  court  in  its 
decisions,  subject  to  the  terms  of  the  treaties  between  the 
United  States  and  China.^ 

The  regulations  published  by  the  ministers  are  intended 
to  supplement  the  provisions  of  the  statutes  by  making  cer- 
tain rules  of  procedure  and  by  supplying  appropriate  and 
sufficient  remedies  not  provided  in  the  statutes  or  in  the 
common  law  or  the  law  of  equity  or  admiralty,  thus  from 
time  to  time  including  such  matters,  under  the  statutes,  as 
the  exigency  may  demand.  The  public  documents  contain 
regulations  for  China,  Turkey,  Japan  and  Korea.^  The 
regulations  of  1871  for  Japan  and  of  1892  for  Korea  were 
modelled  upon  the  codes  of  California  under  the  direction  of 
the  Ministers  C.  E.  De  Long  and  Augustine  Heard  respect- 
ively;^ the  regulations  for  Turkey  were  prepared  by  Consul- 
General  Goddard  and  published  in  1863;  and,  together  with 
an  amendatory  regulation  of  1881  for  Japan,  these  are  the 
only  regulations  for  the  three  countries  named.  There  have 
been  sixteen  sets  of  regulations  for  China,  the  main  set  of 
which,  corresponding  to  those  for  Turkey,  Japan  and  Korea, 
was  drafted  by  Consul-General  Seward  and  published  in 
1863;  there  were  supplementary  regulations  in  1882  and 
1889  in  matters  relating  to  summons  of  witnesses  and  judg- 
ments by  confession.  Several  of  the  earlier  regulations  for 
China  have  nothing  to  do  with  procedure;  one  of  them  re- 
lates to  the  control  of  seamen  on  shore-leave,  another  to 
neutral  conduct  during  the  Taiping  rebellion,  another  gives 
authority  to  hold  court  on  board  ship  at  the  five  ports  * 


1  Sec.  4. 

'  A  table  of  the  regulations  for  consular  courts  is  printed  infra, 
Appendix  XI-1.  The  regulations  for  China  and  Turkey  are  printed 
infra,  Appendix  IV,  IX.  The  regulations  for  Korea  were  very  care- 
fully drawn.  They  follow  sections  (passim)  of  the  civil  and  penal 
codes  of  California.  It  is  regretted  that  their  comparatively  great 
length  forbids   reprinting  in   the  Appendix  infra. 

»  In  Meiklejohn  v.  Gring,  decided  at  Kanagawa  in  1886,  it  was  held 
that  the  rules  of  practice  of  the  U.  S.  Circuit  Court  in  California  were 
not  of  force  in  consular  courts  in  Japan;  Scldmore,  Ministerial  and 
Consular  Courts  of  the  United  States  in  Japan,  Tokio,  1887,  p.  234. 

*  For  several  weeks  court  was  held  by  Mr.  Parker  at  Macao;  his  sue- 


OPINION  OF  SECRETARY  FISH  55 

through  the  war  of  1856-60,  and  another  prohibits  the  navi- 
gation of  the  Straw-shoe  Canal  along  the  Yangtse  Kiver. 

The  procedure  of  the  United  States  court  for  China  is 
to  be  in  accordance,  so  far  as  practicable,  with  the  existing 
procedure  prescribed  for  the  consular  court  in  China.  The 
judge  of  this  court  has  authority  to  modify  and  supplement 
said  rules  of  procedure.^ 

Whether  the  statutes  confer  upon  ministers  authority  to    Are  the 
issue  regulations  dealing  with  any  other  matter  than  pro-   tions  to 
cedure  in  the  courts  has  been  questioned.     The  regulations   only 
for  Japan  transmitted  in  1870  to  the  Secretary  of  State,  Mr.   ^o-^  ° 
Fish,  were  found  to  contain  a  requirement  that  citizens   impo'^^tknt 
should  register  at  the  consulates.    Mr.  Fish  was  of  opinion   co°nsuis- 
that  the  statutes  gave  no  authority  for  such  a  regulation  and  ^^"^''^^ 
no  power  to  enforce  it  judicially,  and  that  the  making  of 
such  a  rule  would  be  an  assumption  of  the  legislative  prerog- 
ative. But  Congress  did  not  disapprove  of  these  regulations. 
There  is  no  doubt,  however,  that  the  opinion  expressed  by 
Mr.  Fish  has  tended  to  restrain  the  ministers  from  exer- 
cising their  power  to  make  regulations ;  and  this  may  partly 
explain  how  it  is  that  the  American  system  of  foreign  juris- 
diction is  lacking  in  many  details  essential  to  its  efficiency, 
details  which  have  been  supplied  in  the  British  system  as 
well  by  decrees  of  the  ministers  as  by  frequently  issued 
Orders  in  Council.^ 

In  the  actual  administration  of  the  foreign  jurisdiction 
the  larger  burden  is  carried  by  the  consuls-general  and  con- 
suls at  a  few  leading  ports.  A  considerable  portion  of  the 
time  of  the  consuls-general  at  Constantinople  and  Shanghai 

cesser  Mr.  Reed  regarded  the  proceedings  as  taken  without  the  Juris- 
diction and  consequently  a  nullity,  Ho.  Ex.  Doc.  29,  p.  7  (vol.  8),  40th 
Cong.,  3d  Sess. 

1  Sec.  5. 

»Sen.  Ex.  Doc.  25,  3d  Sess.,  41st  Cong.;  Ho.  Ex.  Doc.  1,  p.  570, 
pt.  1,  43d  Cong.,  1st  Sess.;  For.  Rel.  1873,  pt.  1,  p.  570;  MSS.  Inst. 
Japan,  1870,  printed  in  Wharton,  Internat.  Law  Digest,  vol.  1,  p.  805. 

It  was  the  opinion  of  Mr.  Bayard  that  Rule  XV  of  the  Regulations 
of  1864  for  China,  which  related  to  limitations  of  actions,  was  to  be 
regarded  'as  a  rule  of  court,'  and  'not  as  a  statutory  mandate';  It 
could  therefore  be  varied  by  the  court  as  justice  might  require;  MSS. 
Inst.  China.  April  27,  1887;  quoted  In  Wharton,  Internat.  Law  Digest, 


56 


WHO  ARE  DESIGNATED  JUDICIAL  OFFICERS 


Rela- 
tions of 
consular 
Judicial 
officers 
to  their 
superiors 


has  heretofore  been  taken  up  with  correspondence  from 
other  parts  of  Turkey  and  China  relating  to  jurisdiction.^ 

The  statutes  restrict  the  exercise  of  judicial  authority  to 
the  ministers,  consuls-general,  vice  consuls-general,^  consuls 
and  vice-consuls.  Whether  a  foreigner  holding  one  of  these 
offices,  as  that  of  vice-consul,  may  exercise  judicial  authority, 
the  statutes  do  not  declare.  The  treaty  of  1830  with  Tur- 
key states  in  its  second  article  that  the  United  States  may 
appoint  citizens  to  be  consuls  or  vice-consuls  in  that  coun- 
try.^ Presumably  the  vice  consuls-general  and  vice-consuls 
are  to  exercise  judicial  functions  only  in  the  absence  or  in- 
ability of  their  superior  officers,  or  when  specially  instructed 
so  to  do.*  The  term  'minister'  in  the  Act  of  1848,  which  the 
present  statutes  resemble,  was  thought  by  Attorney-General 
Gushing  to  include  the  secretary  of  legation  and  the  charge 
d'affaires  ad  interim  when  such  official  was  invested  with 
and  exercising  the  principal  diplomatic  functions."^ 


Appendix,  p.  882;  see  also,  ibid.,  p.  972,  which  discusses  the  principle  of 
statutes  of  limitation  as  related  to  principles  of  internatiofial  law. 

In  U.  S.  -v.  Fullert,  decided  in  1886,  in  the  consular  court  at  Kana- 
gawa,  Japan,  it  was  held  that  the  regulations  had  created  no  new 
rights  unknown  to  the  laws  and  that  they  were  intended  merely  to 
aid  the  administration  and  execution  of  existing  laws;  Scidmore,  U.  S. 
Courts  in  Japan,  p.  238. 

In  U.  S.  11.  Maid,  decided  in  1902,  in  the  IT.  S.  District  Court,  S.  D., 
California,  it  was  held  that  a  criminal  offense  against  the  United 
States  could  not  be  predicated  of  the  violation  of  a  requirement  Im- 
posed only  by  rules  or  regulations  of  one  of  the  executive  departments 
of  the  government,  116  Fed.  Rep.  650;  this  was  upheld  in  U.  S.  i;. 
Blasingame,   116  Fed.    Rep.   654. 

1  There  has  been  nothing  in  the  American  system,  however,  like  that 
which  existed  in  the  German  system  in  China  in  1868,  when  the  Ger- 
man consul-general  at  Shanghai  virtually  decided  cases  upon  evi- 
dence taken  by  deposition  before  a  German  consul  at  a  distant  port; 
Dipl.  Corr.  1868,  pt.  1,  p.  559. 

>  The  words  'vice  consul-general'  were  inadvertently  omitted  from 
Sec.  4130  in  the  first  edition  of  the  Revised  Statutes;  Wharton,  Internat. 
Law  Digest,  vol.  1,  p.  809. 

'  Martens  says  it  was  formerly  customary,  for  France  at  least,  to  ap- 
point subjects  of  the  Porte  as  consular  officers  In  Turkey;  Das  Con- 
sularwesen,  p.  212. 

The  Chinese  objected  to  having  merchants  act  as  consuls  because 
merchants  were  regarded  in  China  as  beneath  official  rank  and,  In- 
deed, as  very  low  in  social  standing;  Dipl.  Corr.  1863,  pt.  2,  p.  843. 

«  Rev.  Stat.,   Sec.  1674. 

*  Opin.  Atty-Gen.  511.     It  was  not  until  1857,   when  the  foreign  lega- 


RELATIONS  TO  SUPERIORS 


57 


In  the  absence  of  the  consul  at  Amoy,  China,  in  1894,  the   Acting- 

•^  1        •  1      consuls 

care  of  the  interests  of  the  consulate  was  transferred,  with   have 

,    J,        ^  no  jual- 

approval  of  the  legation,  to  the  acting  consul  for  Germany  ciai  au- 
at  that  port;  and  while  thus  in  charge  of  the  consulate,  the 
acting  consul  tried  an  American  citizen  for  forgery,  found 
him  guilty  and  sentenced  him  to  fine  and  imprisonment. 
The  minister  at  Peking  instructed  the  acting  consul  to  sus- 
pend proceedings  until  it  should  be  decided  by  the  Depart- 
ment of  State  whether,  as  acting  consul,  he  had  been  clothed 
with  judicial  authority.  The  Department  gave  instructions 
that  no  such  office  was  known  to  our  law  as  that  of  acting 
consul  and  that  no  persons  were  invested  by  the  law  with 
judicial  authority  except  those  who  held  the  offices  named 
in  the  Eevised  Statutes,  Section  4130,  as  ministers  or 
consuls.^ 

The  friendly  and  unofficial  interchange  of  assistance  be- 
tween consulates  of  one  and  another  nationality,  as  between 
American  and  British  consuls  in  the  interior  of  Turkey,  can 
in  no  wise  involve  a  transfer  of  judicial  authority.^ 


tions  were  first  established  at  Peking,  that  the  diplomatic  represent- 
ative of  the  United  States  bore  the  title  of  'envoy  extraordinary  and 
minister  plenipotentiary';  from  1844  to  1857  he  had  the  title  of  'com- 
missioner plenipotentiary',  and  only  transcated  business  through  the 
agency  of  the  several  viceroys  in  the  provinces;  7  Opin.  Atty-Gen.  228. 

» For.  Rel.  1894,  p.  139.  It  was  the  opinion  of  Attorney-General 
Miller  that  the  government  was  In  duty  bound  to  protect  the  public, 
as  far  as  It  might  reasonably  be  expected  to  do  so,  against  the  exer- 
cise of  even  merely  voluntary  consular  functions  by  persons  not  regu- 
larly appointed  consuls,  and  that  no  person  not  clothed  with  authority 
by  the  appointing  power  of  the  United  States  could  lawfully  execute 
the  duties  of  a  public  officer. 

In  U.  S.  v.  Mosby,  133  U.  S.  273,  a  distinction  between  the  official 
and  unofficial  services  of  John  S.  Mosby,  American  consul  at  Hong- 
kong from  1879  to  1885,  was  shown. 

»  Instances  of  friendly  action  on  the  part  of  British  consuls  in  Tur- 
key, but  involving  no  question  of  judicial  authority,  are  given  rn  For. 
Rel.  1882,  p.  495.  498.  501,  503,  515:  and  in  Bulgaria,  For.  Rel.  1893,  p.  656. 

'  Before  the  extension  of  cables  and  telegraph  lines  to  the  East  the 
suspension  or  removal  from  office  of  consular  officers  by  the  minister 
or  consul-general  was  not  unknown;  as  to  China,  see  Dipl.  Corr. 
1864-5,  pt.  3,  p.  420,  and  Sen.  Ex.  Doc.  22,  p.  1373  (vol.  9),  35th  Cong., 
2d  Sess.;  as  to  Egypt,  see  Dipl.  Corr.  1864-5.  pt.  4,  p.  405.  In  1877  the 
minister  to  China  relieved  the  consul-general  from  performing  the 
functions  of  his  office  at  Shanghai  and,  upon  charges  preferred  by  the 
minister,  the  consul-general  was  suspended  by  the  President;  Ho.  Misc. 
Doc.  10,  p.  1-43  (vol.  1),  45th  Cong.,  2d  Sess. 


68 


RELATIONS  TO  DEPARTMENT  OF  STATE 


Relation 
between 
consuls 
acting 
as  judges 
ana  other 
execu- 
tive 
officers 


Rela- 
tions of 
consuls 
to  the 
Depart- 
ment of 
State    In 
their 
judicial 
func- 
tions 


Although  consular  officers  are  primarily  officers  of  the 
executive  branch  of  the  government  and  are  as  such  not  only 
subject  to  instructions  from  their  superiors  but  onay  even 
be  suspended  or  removed  from  office  by  them,  it  should  be 
observed  that  the  statutes  very  definitely  prescribe  what 
cases  are  to  be  heard  and  decided  by  the  consul  sitting  alone, 
for  what  cases  the  consul  may  summon  associates  to  sit  with 
him  on  the  trial,  and  what  cases  may  be  appealed,  thus  fix- 
ing very  precisely  the  distinction  that  in  the  exercise  of 
their  judicial  authority  consuls  are  not  to  attempt  to  obtain 
virtual  decisions  of  cases  by  reference  of  them  to  their 
superior  officers  for  instructions.  A  minister  will  refrain 
from  giving  an  opinion  on  the  merits  of  a  case  which  might 
subsequently  come  before  him  upon  appeal,  and  the  Depart- 
ment of  State  does  not  control  a  consul  acting  judicially. 
But  the  reference  of  points  of  difficulty  to  their  superiors 
for  the  expression  of  opinion  has  come  to  be  one  of  the  dis- 
tinctive features  of  the  American  system  of  consular  juris- 
diction and  is  the  more  necessary  on  account  of  the  lack  of 
full  and  precise  statutory  provisions.^ 

The  Secretary  of  State  has  no  judicial  authority  except 
when  there  is  no  minister  in  the  oriental  country,  yet  this 
restriction  has  not  been  regarded  as  precluding  the  Secre- 
tary from  giving  instructions  in  explanation  of  the  meaning 
of  the  treaties  and  the  nature  of  usages  existing  in  a  par- 
ticular country,  or  from  obtaining  legal  opinions  either  in 
his  own  Department  or  in  the  Department  of  Justice  ^  re- 
garding the  law  pertaining  to  the  administration  of  the 
system  of  consular  jurisdiction;  and  that  such  executive 
instructions  may  be  cited  in  a  court  of  justice,  as  showing 
both  the  rules  of  international  law  and  the  local  usages  at 
any  particular  consulate,  has  been  the  opinion  pronounced 
by  the  federal  courts,  including  the  Supreme  Court.^  Thus 
it  happens  that  while  these  instructions  in  nowise  relieve 


•For.   Rel.   1874,   p.    660,   668. 

'  A  reference  table  of  opinions  rendered  by  the  Attorneys-General 
relative  to   the   foreign  jurisdiction   is   printed   infra.   Appendix   XI-2. 
'Daniese  t.    Hale,   91  U.   S.  13,   20. 


IMMUNITIES    AND    PRIVILEGES  59 

the  consul  of  his  responsibility  as  judge  in  particular  eases, 
the  voluminous  oriental  correspondence  in  the  Department 
of  State  has  become  the  principal  record  of  opinions  upon 
difficult  points  in  the  jurisdiction,  and  the  annually  printed 
volumes  of  the  Foreign  Eelations  series  are  the  most  avail- 
able source  of  information  as  to  these  opinions.^ 

In  keeping  with  the  greater  responsibilities  of  consuls  in  Con- 
•      ±  ^  j_  ■  J^     ■  :        ■  ■   ■        .  I        sular  Im- 

orientai  countries  are  their  greater  immunities  from  the    munitiea 

local  jurisdiction.^  These  are  not  diplomatic  immunities, 
however.  They  are  simply  special  privileges  named  in  the 
treaties  or  arising  frcm  usage.  By  issuing  an  exequatur  to 
him  when  he  enters  upon  the  execution  of  his  official  duties 
the  oriental  government  recognizes  that  the  consul  possesses 
the  international  law  prerogatives  of  his  office  as  well  as  the 
particular  prerogatives  vouchsafed  to  him  in  the  treaties. 
The  consul  is  in  no  manner  amenable  to  the  native  govern- 
ment; he  cannot  be  taxed  except  upon  property  that  does 
not  pertain  to  his  consular  establishment;  he  cannot  be 
arrested;  his  person  and  his  domicil  are  inviolable;  and 
these  immunities  are  shared  by  the  members  of  his  family 
and  by  those  who  regularly  assist  him  in  the  business  of  the 
consulate. 

The  relations  of  the  consular  officials  with  the  native    Relations 
authorities  were  for  many  years  a  subject  of  negotiation  at   ^ais  oP' 
Peking.    They  were  fully  discussed  in  the  conferences  of  the   ^overa-^^ 
ministers  to  China  in  1879.    A  similar  question,  that  of  the   ™®"* 
right  of  audience  of  the  foreign  ministers  before  the  Em- 
peror of  China,  was  at  the  same  time  prominent.    The  result 
was  that  the  predilection  of  the  Chinese  for  certain  forms 
and   ceremonies   was   gratified,   so   far   as   consistent  with 
recognition  of   the   equality  of   the   western  governments 
with   the   government   of   China   and   so   far   as   the   con- 

>  There  is  no  special  collection  of  decisions  of  consular  courts,  and 
the  few  written  opinions  of  consular  Judges  are  not  consulted  by  their 
successors  to  much  extent.  The  newspapers  at  the  leading  ports 
print  many  of  the  decisions.  The  North  China  Herald  and  Supreme 
Court  and  Consular  Gazette  of  Shanghai  has  for  many  years  published 
the  British,  the  American  and  other  consular  court  decisions. 

*  As  to  the  limited  immunities  of  dragomans,  cavasses  and  consular 
assistants  and  guards  in  general,  see  infra,  p.  84-5. 


60  JURISDICTIONAL   DISTRICTS 

venient  dispatch  of  business  permitted.  The  proper 
observance  of  these  forms  and  ceremonies  has  often  de- 
termined the  success  of  an  undertaking.  It  is  believed,  how- 
ever, that  the  insistence  upon  punctilious  observance  of 
such  formalities  is  decreasing.^ 
Con-^  Respecting  the  relations  of  consuls  one  to  another  in  the 

districts  exercise  of  their  judicial  functions  it  may  be  first  remarked 
that  the  extent  of  country  embraced  within  any  consulate  la 
defined  under  authority  given  to  the  President  by  Section 
1695  of  the  Eevised  Statutes.-  The  treaties  grant  ex- 
emption from  native  jurisdiction  throughout  the  territory 

'  The  rules  of  1880  for  correspondence  between  the  consuls  and  the 
provincial  authorities  are  given  in  For.  Rel.  1881,  p.  205,  219;  see  also 
For.  Rel.  1880,  p.  185,  272.  The  suggestion  that  much  of  the  correspond- 
ence might  be  done  in  the  English  language  was  approved  by  the 
minister,  Mr.  Seward,  in  For.  Rel.  1880,  p.  288. 

There  was  long  a  need  of  competent  interpreters;  For.  Rel.  1S79,  p. 
203,  234;  1880,  p.  144;  see  also  Dipl.  Corr.  1866-7,  pt.  1,  p.  479. 

In  earlier  years  the  foreign  ministers  dealt  directly  with  the  taotais 
or  governors  of  the  provinces.  One  of  the  ministers,  Mr.  Parker,  ap- 
pears to  have  visited  the  consulates  at  regular  intervals;  Sen.  Ex. 
Doc.  22  (vol.  8,  9),  35th  Cong.,  2d  Sess. 

A  full  documentary  history  of  the  audience  question  is  given  by  Mr, 
Denby  in  For.  Rel.  1891,  p.  355,  367,  455.  It  is  said  that  In  former 
times  Russian  ambassadors  were  granted  audience,  and  that  the  am- 
bassador of  Peter  the  Great,  Count  Isnailof,  was  received  on  Novem- 
ber 29,  1720.  The  foreign  ministers  were  not  in  residence  at  Peking 
until  1857.  Their  first  audience  did  no  occur  unil  1873  and  it  was  en 
masse.  Shortly  afterwards  four  European  ministers  were  received 
separately.  From  that  time  until  1891  no  audience  was  accorded,  and 
In  that  year  the  Chinese  government  proposed  an  audience  en  masse. 
This  led  to  a  conference  and  the  consequent  acceptance  of  separate 
audiences.  See  also  For.  Rel.  1873,  p.  194-201,  and  Wharton  Internat. 
Law  Digest,  Appendix,  p.  881.  A  memorandum  of  the  ceremonial  to  be 
followed  upon  occasion  of  audiences  is  printed  in  For.  Rel.  1901,  Ap- 
pendix, p.  338. 

The  Dutch  superintendents  of  trade  at  Nagasaki,  Japan,  had  been 
periodically  brought  to  Yedo,  rather  to  pay  homage  than  obtain 
audience.  The  first  accredited  foreign  representative  to  be  received 
at  the  residence  of  the  Shogun  or  Tycoon  was  the  American  minister, 
Townsend  Harris.  This  occurred  in  1857  and  was  marked  by  the 
greatest  care  as  to  ceremonies  in  honor  of  the  minister  and  of  his 
government.  The  foreign  ministers  were  first  received  in  a  body  on 
the  Japanese  New  Year's  Day,  February  10,  1872;  For.  Rel.  1872,  p.  321;  • 
1879,  p.  620. 

A  copy  of  the  regrulations  for  the  diplomatic  and  consular  service  of 
China  is  given  in  For.  Rel.  1877,  p.  85. 

-  The  Consular  Regulations  of  1896,  Par.  30,  give  the  general  rule  that 
the  limits  of  a  consulate  embrace  the  territory  nearer  to  the  official 
residence   of   the   consul    than   to   the   residence   of   any   other   consul 


ASSOCIATES  TO  CONSULAR  JUDGES 


61 


belonging  to  the  oriental  state  and  it  would  seem  reasonable 
to  infer  that  the  foreign  jurisdiction  would  be  conterminous 
with  those  boundaries  including  the  coast  waters.  In  the 
Ross  ease  the  court  held  that  the  harbor  of  Yokohama  was 
within  the  district  over  which  the  jurisdiction  of  the  con- 
sul extended. 

It  was  held  in  Winn  v.  Hill,  whether  in  the  court  of  the 
minister  or  not  does  not  appear,  that  no  power  to  change 
the  venue  of  a  cause  was  given  to  consular  courts  in  Japan 
either  by  statute  or  by  regulation,  that  no  cause  could  be 
remanded  by  one  consul  to  the  jurisdiction  of  another,  and 
that  the  consul-general  had  no  power  to  authorize  or  compel 
another  consular  officer  to  leave  his  consulate  and  come  to 
Yokohama  to  act  judicially.^ 

Passing  to  the  remaining  leading  features  of  the  statutes 
it  may  be  noted  that  no  questions  concerning  the  utility  of 
or  frequency  of  resort  to  referees  for  the  settlement  of  con- 
troversies appear  in  the  public  documents.  The  same  is  true 
of  cases  heard  and  decided  by  consuls  sitting  without  as- 
sociates on  the  trial,  yet  a  large  number  of  cases  are 
tried  in  this  manner,  many  of  them  being  minor  criminal 
offenses  such  as  are  tried  before  justices  of  the  peace  in  the 
United  States.  Concerning  associates  with  the  consular 
judge,  it  was  held  in  Wertheimer  v.  Hoeflich,  at  Yokohama, 
in  1870,  that  if  a  person  whose  name  does  not  appear  in  the 
consular  lists  of  associates  approved  by  the  minister,  acts  as 
associate,  the  circumstance  is  sufficient  to  vacate  the  trial 
and  set  aside  the  judgment  in  the  case.-  It  was  also  decided 
at  Yokohama  in  U.  S.  t;.Ross  in  1880  and  in  TJ.  S.  v.  Fullert 
in  1886  ^  that  associates  are  in  duty  bound  to  decide  both  as 


No 

change 
of  venue 
permitted 


Quall- 
Scation 
as    asso- 
ciate 


Asso- 
ciates to 
decide  as 
to   fact 
and  as  to 
law 


within  the  same  allegiance,  and  state  that  this  rule  is  to  be  followed 
when  specific  instructions  have  not  been  given. 

At  Ningpo,  China,  in  1856,  Charles  Jackson,  an  American  seaman 
shot  another  American  seaman.  He  was  put  in  irons  on  the  ship 
Ltvant  of  the  same  nationality  and  brought  to  Shanghai,  where, 
with  approval  of  the  commissioner,  he  was  tried  and  sentenced,  not- 
withstanding there  was  a  consulate  at  Ningpo  at  the  time;  Sen.  Doc. 
22,  p.  888,  896,  912,  1013,  (vol.  9),  35th  Cong.,  2d  Sess. 

1  Scidmore,   U.   S.   Courts  in  Japan,   p.  245. 

» Ibid.,  p.  204. 

»Ibid.,   p.   205. 


62 


JURISDICTION  OF  THE  MINISTER 


Attor- 
neys 


Juris- 
diction 
of   the 
minister 


Cases  im- 
plicat- 
ing  con- 
sular 
em- 
ployees 


to  questions  of  fact  and  as  to  questions  of  law.  Attorneys 
not  citizens  of  the  United  States  were  admitted  to  appear 
before  the  consular  judge  by  courtesy,  but  only  as  agents  on 
behalf  of  the  litigants.^ 

That  the  Act  of  1848,  the  language  of  which  in  this 
respect  is  repeated  in  the  Eevised  Statutes,  contemplated 
that  the  jurisdiction  of  the  ministers,  except  in  capital  cases, 
should  be  solely  appellate,  was  pointed  out  by  Attorney- 
General  Gushing,  in  an  opinion  rendered  in  1855.^  In  1874 
the  minister  to  Japan,  Mr.  Bingham,  declined  to  give  an 
opinion  upon  a  case  which  from  its  nature  might  subse- 
quently be  appealed  to  the  court  in  which  he  should  sit  as 
judge.^  In  1882  the  American  minister  to  Japan  held  in 
Ex  parte  O'lSTeil  that  in  refusing  an  application  for  a  writ  of 
habeas  corpus  for  a  prisoner  confined  under  sentence  of  a 
consular  court,  a  judgment  had  not  been  rendered  in  the 
exercise  of  either  original  or  appellate  jurisdiction  and  that 
in  consequence  no  appeal  from  this  ruling  would  lie  to  the 
circuit  court  in  California.^  In  Winn  v.  Hill,  decided  at 
Kanagawa  in  1882,  it  was  held  that  the  statutes  had  not 
given  power  to  the  Department  of  State  to  revise  a  judg- 
ment pronounced  in  a  consular  court.^ 

The  provision  that  where  a  consular  officer  is  interested 
either  as  party  or  witness  the  minister  is  to  have  original 
jurisdiction  was  held  by  the  Department  of  State  not  to 
pertain  to  a  marshal  or  jailor.^  Section  4130  of  the  Eevised 
Statutes  includes  under  the  term  consul,  'consul-general, 
vice  consul-general,  consul  or  vice-consuF ;  this  section,  how- 
ever, appears  to  refer  only  to  officers  upon  whom  judicial 
authority  is  conferred.  Other  persons  connected  with  the 
consulates  are  therefore  justiciable  in  the  consular  courts.^ 


>  Meiklejohn  v.  Gring,  decided  at  Yokohama  in  1886,  Scidmore,  U.  S. 
Courts  in  Japan,  p.  206. 

>7  Opin.  Atty-Gen.  507.  By  act  of  June  30,  1906,  the  jurisdiction  of 
the  minister  to  China  is  impliedly  transferred  to  the  United  States 
court  for  China;  Sec.  1,  2. 

»  For.  Rel.  1874,  p.  660,  668. 

«  Scidmore,  U.  S.  Courts  in  Japan,  p.  201. 

•  Ibid.,  p.  203.        •  For.   Rel.   1892,  p.   113,  123. 

'  Section  1674  Includes  under  the  term  'consular  officer'  none  others 


fornla 


APPEALED   CASES  63 

It  was  also  held  by  the  Department  that  the  necessity  of 
summoning  an  acting  consular  agent  as  witness  did  not  so 
involve  a  consular  officer  in  the  case  either  as  party  or  wit- 
ness as  to  require  under  the  statute  that  the  minister  exer- 
cise original  and  exclusive  jurisdiction.^ 
There  appear  to  have  been  only  six  cases  appealed  from  con-   cases 

sular  courts  in  China  and  Japan  to  the  district  court  in  Cali-   have 

J  ,  »    been    ap- 

fornia.-    Of  these  only  three  were  reported  cases  and  two  oi    pealed  to 

these  three,  the  case  of  the  Steamer  Spark  v.  Lee  Choi  cuit 
Chum,  in  1872,^  and  the  case  of  Tazaymon  v.  Twombly,  in  ca^N 
1878/  were  found  to  have  been  irregularly  appealed  and 
were  dismissed.  The  third  case,  that  of  The  Ping-On  v. 
Blethen,  in  1882,'^  resulted  in  the  statement  of  an  opinion 
that  the  provisions  of  Section  4107  of  the  Revised  Statutes, 
which  make  the  judgment  of  the  consul  final  when  concurred 
in  by  his  associates  and  allow  an  appeal  to  the  minister 
when  there  is  a  difference  of  opinion,  refer  only  to  cases  in 
which  the  matter  in  dispute  does  not  exceed  |2,500,  the  pro- 
visions in  regard  to  appeal  to  the  minister  being  necessarily 
subordinated  to  the  provisions  for  a  system  of  appeal  to  the 
circuit  court  in  California.  Similarly  it  was  held  in  Nee 
Chang  Mow  and  Co.  v.  George  and  George,  decided  at 
Shanghai  in  1903,  that  an  appeal  in  a  suit  involving  more 
than  $2,500,  United  States  gold,  would  not  lie  to  the  min- 
ister.® 

than    consuls-general,    consuls,    commercial    agents,    deputy    consuls, 
rice-consuls,  vice-commercial  agents  and  consular  agents. 

'For.   Rel.   1879,   p.   987,   1010,   1012. 

=  Mr.  Southard  Hoffman,  clerk  of  the  circuit  court  for  the  northern 
district  of  California,  states  that  the  records  show  three  unreported 
cases,  appeals  from  the  consular  courts  in  Japan,  namely:  No.  1269, 
Yenomoto  Rukubie  v.  Pacific  Mail  Steamship  Co.,  appeal  ordered  dis- 
missed in  1874,  no  opinion;  No.  1342,  Finance  Department  of  the  Impe- 
rial Government  of  Japan  v.  Pacific  Mail  Steamship  Co.,  record  on 
appeal  filed  in  1875,  appeal  ordered  dismissed  in  1878  for  want  of  prose- 
cution; No.  2614,  Mitsu  Bishi  Mail  Steamship  Co.  -u.  Pacific  Mail 
Steamship  Co.,  motion  to  dismiss  appeal  denied  and  appeal  of  con- 
sular court  affirmed  in  1882,  no  opinion. 

^  1  Sawyer  713.  The  opinion  of  Mr.  Justice  Sawyer  sets  forth  the 
requisites  of  an  appeal. 

*5  Sawyer  79. 

»11  Fed.  Rep.  607. 

•  North  China  Herald,  vol.   Ixx,  p.  137,   January  21,  1903. 


64 


CONSTITUTIONALITY 


Consti-  It  was  to  be  expected  that  an  anomalous  system  of  juris- 

ity  o?*he  diction  which,  although  administered  under  circumstances 
dYctfon  that  made  any  fully  satisfactory  methods  of  justice  very  diffi- 
cult, denied  to  American  citizens  or  failed  to  provide  for 
them  the  forms  of  Justice  to  which  they  were  accustomed  at 
home,  would  be  challenged  as  unconstitutional.  The  point 
of  constitutionality  has  been  argued  impromptu  in  the  Sen- 
ate ^  and  has  been  a  subject  of  decision  in  the  state  and  fed- 
eral courts  in  the  United  States  and  in  the  consular  courts 
in  China  ^  and  Japan  as  well. 


'  In  debate  on  the  annual  consular  and  diplomatic  appropriation  bill, 
January  7,  1881.  Senator  Matt.  Carpenter  of  Wisconsin,  moving  to 
strike  out  the  paragraphs  relating  to  rent  of  a  prison  for  American 
convicts  in  China  and  for  wages  of  keepers,  care  of  offenders,  and  ex- 
penses, declared  the  whole  American  system  of  foreign  jurisdiction 
in  the  Orient  boldly  unconstitutional,  and  said:  "I  deny  that  the  Gov- 
ernment of  the  United  States  can  exercise  any  authority  derived  from 
anybody  or  anything  except  the  Constitution  of  the  United  States.  I 
deny  that  the  monarchy  of  Great  Britain  can  clothe  us  with  powers 
denied  by  the  Constitution;  I  deny  that  the  Emperor  of  China  can 
do  any  such  thing;  and  although  it  be  to  exercise  power  upon  our 
citizens,  I  deny  that  our  Government  as  a  Government  can  do  it. 
.  .  .  When  you  get  into  a  State  Legislature  there  anything  within 
the  general  province  of  legislation  may  be  done  if  it  is  not  forbidden 
by  the  State  or  Federal  Constitution;  but  when  you  come  to  consider 
any  power  of  Congress  it  is  not  enough  to  show  that  it  is  not  for- 
bidden in  the  Constitution.  You  must  be  able  to  point  out  the  clause 
that  confers  the  power."  "When  you  come  to  our  power  to  do  what 
China  is  willing  we  should  do,  you  must  point  to  some  provision 
in  the  Constitution  which  gives  us  that  right." 

Senator  Hoar  of  Massachusetts  briefly  showed  the  inexpediency  of 
doing  away  with  the  usual  appropriations  for  the  exercise  of  our  for- 
eign jurisdiction.  "I  understand,"  said  he,  "that  the  jurisdiction  of 
our  consular  offlcers  or  ministers  in  foreign  countries,  especially  in 
Asiatic  countries,  for  the  trial  of  offenders  for  grave  offenses  is  not 
under  any  authority  conferred  by  the  Constitution  of  the  United 
States,  but  it  is  under  the  authority  conferred  by  the  governments 
where'  they  reside."  And  Senator  Hill  of  Georgia  said:  "In  my 
judgment  this  whole  question  of  the  protection  of  our  citizens  in  for- 
eign countries  is  vested  in  the  Government  of  the  United  States 
under  the  treaty-making  power,  not  under  the  judicial  power  or  any 
of  those  other  powers  relating  to  the  government  of  citizens  in  this 
country;  and  I  think  that  in  all  our  relations  with  foreign  governments 
the  United  States  Government  is  just  as  much  a  nation  as  England 
or  France."  Congressional  Record,  vol.  11,  pt.  1,  p.  409-16.  46th  Cong., 
3d   Sess. 

2  Shanghai,  1864,  case  of  J.  Buckley,  on  trial  for  murder,  T.  B, 
Eames,  attorney  for  defendant;  Dipl.  Corr.  1864-5,  pt.  3,  p.  400,  440,  474.. 
478;  see  a  statement  of  the  facts  in  this  case  in  In  re  Stupp.  IL 
Blatchford.  148. 


FORBES  V.   SCANNEL  65 

It  was  contended  in  Forbes  v.  t^cannel/  in  the  supreme  Forbes  v. 
court  of  California  in  1859,  that  Congress,  in  legislating  i859 
directly  upon  the  persons  and  property  of  American  citizens 
under  authority  derived  from  China,  had  exceeded  its 
powers  under  the  constitution;  that  the  authority  conferred 
upon  ministers  to  make  regulations  was  a  delegation  of 
legislative  power,  and  therefore  unconstitutional;  that 
under  the  constitution  no  person  could  be  held  to  answer 
for  capital  or  infamous  crimes  without  the  presentment  or 
indictment  of  a  grand  jury,  whereas  in  the  consular  courts, 
the  consul,  an  executive  officer,  ordinarily  brought  the  in- 
dictment and  acted  alone  as  prosecuting  attorney,  judge  and 
jury. 

The  opinion  of  the  court  delivered  by  Mr.  Justice  Bald- 
win contains  the  following  passage  :- 

It  would  require  au  extremely  clear  case  of  repugnancy  to  the 
Constitution  of  the  United  States  to  justify  us  in  holding  uncon- 
stitutional such  a  power  of  protection  to  American  citizens — a 
power  alike  essential  to  the  maintenance  of  friendly  relationa 
with  a  state  like  China  and  to  secure  the  rights  of  our  people 
there,  and  one,  moreover,  so  long  recognized  as  well  by  our  own 
government  in  other  instances,  as  by  other  Christian  powers  in 
their  intercourse  with  such  nations. 

The  general  authority  given  to  Congress  to  regulate  com- 
merce with  foreign  nations  could,  probably,  find  no  more 
useful  or  appropriate  means  of  exercise  than  in  treaties  and 
laws  withdrawing  our  citizens  domiciled  in  unchristian  nations 
from  the  jurisdiction  of  such  governments,  and  confiding 
their  rights  of  property  and  persons  to  judicial  otHcers 
of  their  own  country,  administering,  under  responsibilities 
to  a  common  government,  laws  with  the  general  spirit  and 
principles  of  which  those  citizens  are  familiar.  That  government 
would  be  weak  indeed  which  could  not,  in  this  peaceful  and  un- 
objectionable mode,  with  the  assent  of  the  foreign  power,  exer- 
cise this  wholesome  protection  and  restraint  over  its  citizens 
abroad, 

>  13  California  242,   250,    263. 
'13  California  242,   281. 


66  IN  RE  ROSS 

/«  rt  In  the  case  of  Eoss,  before  the  Supreme  Court  in  1890, 

Ross, 

1890  counsel  argued  that  the  legislation  which  was  intended  to 

carry  the  treaties  into  effect  should  have  provided  the  same 

protection  and  guarantees  in  Japan  against  undue  accusation 

and  unfair  trial  which  are  secured  by  the  constitution  to 

citizens  within  the  United  States.     Upon  this  argument, 

after  stating  the  general  grounds  of  extraterritoriality  in 

oriental  countries,  the  court  held  as  follows,  Mr.  Justice 

Field  delivering  the  opinion:^ 

By  the  Constitution  a  governmBnt  is  ordained  and  established 
"for  the  United  States  of  America",  and  not  for  countries  outside 
of  their  limits.  The  guarantees  it  affords  against  accusation  of 
capital  or  infamous  crimes,  except  by  indictment  or  presentment 
by  a  grand  jury,  and  for  an  impartial  trial  by  a  jury  when  thus 
accused,  apply  only  to  citizens  and  others  within  the  United 
States,  or  who  are  brought  there  for  trial  for  alleged  offences 
committed  elsewhere,  and  not  to  residents  or  temporary  so- 
journers abroad.  .  .  .  The  framers  of  the  Constitution,  who 
were  fully  aware  of  the  necessity  of  having  judicial  authority 
exercised  by  our  consuls  in  non-Christian  countries,  if  commer- 
cial intercourse  was  to  be  had  with  their  people,  never  could 
have  supposed  that  all  tne  guarantees  in  the  administration  of 
the  law  upon  criminals  at  home  were  to  be  transferred  to  such 
consular  establishments,  and  applied  before  an  American  who 
had  committed  a  felony  there  could  be  accused  and  tried.  They 
must  have  known  that  such  a  requirement  would  defeat  the 
main  purpose  of  investing  the  consul  with  judicial  authority. 
While,  therefore,  in  one  aspect  the  American  accused  of  crime 
committed  in  those  countries  is  deprived  of  the  guarantees  of 
the  Constitution  against  unjust  accusation  and  a  partial  trial,  yet 
in  another  aspect  he  is  the  gainer,  in  being  withdrawn  from  the 
procedure  of  their  tribunals,  often  arbitrary  and  oppressive,  and 
sometimes  accompanied  with  extreme  cruelty  and  torture. 

The  With  regard  to  this  case  an  eminent  authority  on  con- 

theory  of 
agency       stitutional  law  has  observed  that  the  principle  involved  is 

"simply  that   of   an  immunity  granted  by  the   territorial 

sovereign  of  Japan  to  the  citizens  of  the  United  States  while 

sojourning  in  Japan.     It  is  probably  true  that  this  practice 

>  140  U.  S.  453,  464.     As  to  Ross's  nationality  see  infra,  p.  87  and 
ibid,  note  3. 


THE  THEORY  OF  AGENCY  67 

of  consular  jurisdiction  in  foreign  lands  is  a  relic  of  the  Professor 

.  Burgess's 

mediaeval  idea  that  law  is  personal — that  is,  racial  or  na-  opinion 
tional — and  follows  the  individual  wherever  he  may  go.  But 
the  modern  principle  is  that  law  is  territorial,  and  that  all 
departures  from  this  principle  are  the  exceptions  which 
make  the  rule  manifest.  We  must,  therefore,  reconcile  the 
existence  of  these  exceptional  immunities  with  the  principle 
of  territorial  sovereignty;  and  this  can  be  done  only  by  re- 
garding all  authority  exercised  within  the  sphere  of  the  im- 
munity as  proceeding  from,  and  administered  for,  the  terri- 
torial sovereign,  but  administered  by  the  countrymen  of 
the  party  or  parties  concerned,  and  administered  according 
to  such  methods  as  they  or  their  home  government  may 
devise.'^  ^ 

This  theory  is,  in  a  word,  that  of  agency :  a  consul  in  Tur- 
key or  China  exercises  jurisdiction  as  an  agent  of  Turkey  or 
China;  the  source  of  his  authority  as  a  judge  is  not  the 
United  States,  but  the  oriental  power,  which  has,  through 
treaty  stipulation  or  long  standing  usage,  made  the  grant  of 
jurisdiction;  the  laws  and  regulations  provided  by  the 
American  government  for  controlling  the  exercise  of  con- 
sular jurisdiction  are  virtually  provided  in  behalf  of  the  ori- 
ental government.  From  the  theory  of  agency  it  follows 
that  the  federal  government  is  not  restrained  by  the  Con- 
stitution of  the  United  States  from  providing  for  the  trial 
of  citizens  sojourning  in  China  or  Turkey  in  consular  courts, 
which  cannot,  under  existing  law,  extend  to  such  citizens 
the  same  immunities  as  they  enjoy  in  their  ovm  country. 
"All  that  the  court  said,  in  the  Eoss  case,  was  that  'the  Con- 
stitution can  have  no  operation  in  another  country,'  and  that 
the  government  was  not  established  for  countries  outside  of 
the  United  States." 

It  may  further  be  observed  that  Congress  in  providing  f or 
the  government  of  the  territories  of  the  United  States  has 
found  it  impracticable  to   establish   systems  of  justice  in 

>  Burgess,  Government  of  Distant  Territory,  Political  Science  Quar- 
terly, vol.  14  (1899),  p.  9. 


68 


ANALOGIES  TO  COURTS  IN  TERRITORIES 


Other 
consti- 
tutional 
grounds 


Juris- 
diction 
under 
the 
power 
to   make 
treaties 


which  all  of  the  essential  rights  vouchsafed  by  the  constitu- 
tion to  citizens  residing  in  the  states  could  be  preserved. 
The  territorial  courts  are  maintained  under  the  third  sec- 
tion of  Article  IV  of  the  Constitution,  which  confers  power 
upon  Congress  to  make  all  needful  rules  and  regulations 
respecting  the  territory  and  other  property  of  the  United 
States.  Upon  this  basis  much  legislation  has  been  enacted, 
the  necessity  for  which  the  framers  of  the  Constitution 
could  not  possibly  have  foreseen  and  which,  though  it  has 
qualified,  adapted  and  restricted  the  exercise  of  certain  civil 
rights  in  those  territories,  the  Supreme  Court  has  upheld  as 
constitutional.^  Similarly,  the  legislation  for  carrying  into 
full  eifeet  the  treaties  of  extraterritoriality  could  not  pos- 
sibly have  provided  for  citizens  in  the  Orient  the  same  rights 
they  enjoy  at  home,  and  the  analogy  is  the  more  apparent 
when  it  is  recalled  that  neither  the  courts  in  the  territories 
nor  the  consular  courts  are  federal  courts  under  the  third 
article  of  Constitution,  that  they  cannot  be  said  to  exercise 
the  'judicial  power  of  the  United  States,'  and  hence  that 
they  cannot  be  regarded  as  subject  to  the  constitutional 
limitations  of  the  courts  of  the  United  States. 

Again  there  are  constitutional  grounds  for  these  forms 
of  foreign  jurisdiction  in  the  eighth  section  of  Article  I 
which  gives  Congress  power  to  regulate  commerce  with  for- 
eign nations,  and  in  subsequent  clauses  of  the  same  section 
which  give  Congress  power  to  enact  laws  to  define  and 
punish  offenses  against  the  law  of  nations  and  to  carry  into 
execution  all  powers  vested  by  the  Constitution  in  the  gov- 
ernment of  the  United  States  or  in  any  department  or 
officer  thereof. 

Another  and  a  very  strong  basis  of  constitutionality  for 
the  statutory  system  of  foreign  jurisdiction  is  contained  in 
Article  II,  Section  2,  which  declares  that  the  President 
shall  have  power,  by  and  with  the  advice  and  consent  of  the 
Senate,  to  make  treaties  and  that  he  shall  nominate  and  by 


>  Canter's  case,  26  U.   S.  546;  Hawaii  z:  Mankichi,  190  U.  S.  217;  U.  S. 
.   Dorr,  195  U.   S.   148;   Rasmussen  v.  U.   S.,  197    U.    S.    516. 


BRITISH    FOREIGN    JURISDICTION  69 

and  with  the  consent  of  the  Senate  shall  appoint  ambas- 
sadors, other  public  ministers  an.i  consuls,  and  in  Article  VI, 
which  declares  the  Constitution,  and  the  laws  made  in  pur- 
suance thereof,  and  all  treaties  made  or  which  shall  be  made 
under  the  authority  of  the  United  States,  to  be  the  supreme 
law  of  the  land. 

Among  the  several  earlier  and  later  Acts  of  Parliament   British 

f  onGifim 

relating  to  foreign  jurisdiction,  that  of  1843  is  notable  as  juris- 
being  the  first  in  which  fundamental  propositions  of  law 
were  set  forth  looking  to  the  control  of  such  jurisdiction  in 
its  entirety.^  There  were  already  in  existence  certain  acts 
applicable  to  jurisdiction  in  particular  countries  ;2  juris- 
diction in  Japan  had  at  least  been  granted  to  the  East  India 
Company;-  and  jurisdiction  had  prevailed  in  Turkey  under 
the  charter  of  the  Levant  Company  until  its  dissolution  in 
1825.3  jjj  1826  the  legality  of  the  jurisdiction  of  consuls 
in  Turkey  was  doubted  by  the  law  officers  of  the  Crown,  and 
eventually  in  the  Act  of  1843  Parliament  declared  the  lead- 
ing principles  of  law  in  conformity  with  which  the  entire 
foreign  jurisdiction  should  be  regulated. 

This  and  subsequent  enactments  were  consolidated  in  the   Analysis 
Foreign  Jurisdiction  Act  of  1890,  which  is  still  in  force.'    Foreign 
The  Act  declares   that   "whereas  by  treaty,    capitulation,   aiction 
grant,  usage,  suff ranee,  and  other  lawful  means,"  the  Crown   iggo 
"has  jurisdiction  within  divers  foreign  countries,"  "it  is  an-l 
shall  be  lawful  for"  it  "to  hold,  exercise  and  enjoy  any  juris- 
diction" which  it  "now  has  or  may  at  any  time  hereafter 
have  within  a  foreign  country  in  the  same  and  as  ample  a 


1  Tlie  leading  authorities  on  British  foreign  jurisdiction  are:  Hall, 
Foreign  Powers  and  Jurisdiction  of  the  British  Crown,  London,  1894; 
Piggott,  Exterritoriality— The  Law  Relating  to  Consular  Jurisdiction 
and  to  Residence  in  Oriental  Countries,  London,  1892;  Tarring,  British 
Consular  Jurisdiction  in  the  East,  London,  1887.  Hertslet's  Commer- 
cial Treaties,  vol.  xvi,  p.  232-42,  gives  an  excellent  index  of  treaties, 
acts  and  orders  relating  to  foreign  jurisdiction. 

2  Hildreth,  R.,  Japan  as  It  Was  and  Is,  Boston,  18.55,  p.  170. 

'  Certain  such  acts  are  named  in  the  act  of  June  10,  1825,  by  which 
the  Levant  Company's  charter  was  rescinded  and  the  powers  exercised 
under  it  were  taken  over  by  the  general  government;  Brit,  and  For. 
State  Papers,   vol.  12,  p.  531. 

*  53  and  54  Vict.,   c.   37. 


70 


ACTS  OF  PARLIAMENT 


provi-  manner"  as  if  it  had  acquired  that  jurisdiction  "by  the  ces- 
the^Vor-  sion  or  conquest  of  territory."  In  this  language,  while 
rifdicSn  recognizing  the  prerogative  of  the  Crown  in  the  making  of 
^90  °^  treaties  and  in  respect  to  foreign  relations  in  general,  Par- 
liament gives  or  confirms  certain  legislative  powers  exer- 
cised or  to  be  exercised  by  the  Crown  in  Council  in  regula- 
tion of  the  foreign  jurisdiction.^  The  Act  further  declares 
that  "an  Order  in  Council  made  in  pursuance  of  this  Act 
shall  not  be,  or  be  deemed  to  have  been,  void  on  the  ground 
of  repugnancy  to  the  law  of  England  unless  it  is  repugnant 
to  the  provisions"  of  an  Act  of  Parliament  or  of  regulations 
made  under  it,  which  extend  to  British  subjects  in  the  par- 
ticular country  affected  by  that  Order  in  Council.  And 
"every  Order  in  Council  made  in  pursuance  of  this  Act  shall 
be  laid  before  both  Houses  of  Parliament  forthwith  after  it 
is  made"  and  "shall  have  effect  as  if  it  were  enacted  in  this 
Act."'  "Where  a  foreign  country  is  not  subject  to  any  gov- 
ernment," from  which  this  jurisdiction  might  be  obtained, 
the  Crown  "shall  by  virtue  of  this  Act  have  jurisdiction" 
over  British  "subjects  for  the  time  being  resident  in  or  re- 
sorting to  that  country,"  and  that  jurisdiction  shall  be 
within  the  provisions  of  this  Act.  "If  in  any  proceeding, 
civil  or  criminal,  in  a  court"  in  British  dominions  or  held 
under  British  authority  "any  question  arises  as  to  the  ex- 
istence or  extent"  of  British  jurisdiction  "in  a  foreign  coun- 
try, a  Secretary  of  State  shall,  on  the  application  of  the 
court,"  send  his  decision  on  the  question  and  "his  decision 
shall  for  the  purposes  of  the  proceeding  be  final."  "Every 
act  and  thing  done  in  pursuance  of"  the  jurisdiction  "in  a 
foreign  country  shall  be  as  valid  as  if  it  had  been  done  ac- 
cording to  the  local  law  then  in  force  in  that  country."  At 
some  length  it  is  declared  under  what  forms  of  law  the 
Crown  in  Council  may  authorize  the  transfer  of  criminal 
offenders  from  foreign  countries  to  British  possessions  and 
may  provide  for  their  trial  within  those  possessions.  The 
Act  also  declares  in  what  measure  consuls  or  others  may  be 


»  Hall,  Foreign  Jurisdiction,  p.  9;  Plggott,  Exterritoriality,  p.  26. 


ORDERS  IN  COUNCIL  71 

held  liable  for  neglect  or  default  in  exercising  the  juris- 
diction. It  declares  the  power  of  the  Crown  in  Council  to 
make  any  law  that  may  seem  meet  for  the  government  of 
British  subjects  being  in  any  vessel  at  a  distance  of  not  more 
than  one  hundred  miles  from  the  coast  of  China  or  of 
Japan;  and  it  includes  among  British  protected  subjects  all 
the  subjects  of  the  several  princes  and  states  in  India.  To  a 
certain  extent  it  repeals  other  acts  mentioned  in  an  ap- 
pended schedule,  and  authorizes  the  Crown  in  Council  to 
amend,  or  revoke,  certain  other  acts,  if  it  sees  fit. 

The  foregoing  sketch  of  the  principal  Act  of  Parliament   The  Or- 

d6i*9  In 

respecting  foreign  jurisdiction  is  enough  to  indicate  how  council 
little  direct  legislation  has  been  included  in  it  and  to  sug-  number 
gest  that  in  confirming  the  Orders  in  Council  made  or  that  scopa 
should  be  made  in  pursuance  of  the  act  and  in  conformity 
with  it.  Parliament  designed  to  leave  practically  the  entire 
provision  for  and  regulation  of  the  foreign  jurisdiction  to 
the  Crown  in  Council.  As  a  rule,  each  of  these  Orders  in 
Council  applies  to  one  country  alone.  The  number  of  the 
Orders  has  been  large,  both  because  of  the  many  countries 
where  the  jurisdiction  has  been  exercised  and  because  of 
frequent  revisions.  The  more  recent  Orders  are  much 
longer  and  in  greater  detail  than  the  earlier.  They  contam 
in  elaborate  form  the  adaptations  of  English  law  which  ex- 
perience has  shown  to  be  necessary  for  the  protection  and 
control  of  the  long-established  and  wide  spread  interests  of 
British  subjects  residing  or  trading  in  the  Orient.  In  gen- 
eral their  field  is  no  less  extensive  than  that  occupied  by  the 
other  and  somewhat  similar  Orders  in  Council  for  the  gov- 
ernment of  the  crown  colonies.  They  have  much  wider 
scope  and  greater  detail  than  the  statutes  upon  which  the 
American  system  rests.  For  example,  they  limit  less  nar- 
rowly the  power  of  the  ministers  to  make  regulations  for 
the  observance  of  the  treaties  in  certain  exigencies  and  for 
the  peace,  order  and  good  government  of  British  subjects  in 
the  oriental  country;  they  grant  to  the  minister  a  right  of 


72  FRENCH  FOREIGN  JURISDICTION 

pardon  which  he  may  extend  in  certain  instances  to  criminal 
offenders;  and  they  make  compulsory  the  registration  of 
British  subjects  at  the  consulates.^  Another  marked  feature 
of  the  British  system  of  foreign  jurisdiction  in  comparison 
with  the  American  consists  of  its  highly  perfected  system  of 
appellate  jurisdiction.  In  some  countries  an  appeal  lies  to 
the  court  of  the  minister,  but  in  others,  as  in  China  and 
Turkey,  it  lies  to  a  supreme  consular  court,  as  at  Shanghai 
or  Constantinople.  Certain  appeals  are  allowed  to  courts  of 
superior  standing  in  British  colonial  possessions  as  to  Hong- 
kong, Bombay,  the  Straits  Settlements,  Malta  or  Gibraltar, 
and  from  such  courts  to  the  Privy  Council.  The  supreme 
court  of  the  colony  of  Hongkong  has  been  intimately  con- 
nected with  the  administration  of  justice  in  consular  courts 
in  China  and  Japan.^ 
The  Another  system  of  foreign  jurisdiction  more  highly  per- 

system  of  fected  than  the  present  American  system,  is  the  French, 
dictfon  ^^^  principal  legislative  acts  for  the  control  of  this  juris- 
diction are  those  of  1681,  1778  and  1836.  There  have  been 
many  supplementary  and  amendatory  acts,  but  the  royal 
edict  of  1778  still  remains  the  fundamental  law  in  respect  to 
civil  jurisdiction  as  the  law  of  1836  remains  the  fundamental 
law  in  respect  to  criminal  jurisdiction,  while  both  rest  upon 
the  provisions  of  the  royal  edict  of  1681.  That  the  French 
system  was  developed  so  much  earlier  than  the  English  was 
due  to  the  priority  and  early  predominance  of  French  in- 
terests in  the  Levant.^ 


1  Piggott,  Exterritoriality,  p.  117. 

'  Norton-Kyshe  (appointed  registrar  of  the  supreme  court  at  Hong- 
kong in  1896),  History  of  tlie  Laws  and  Courts  of  Hongkong,  2  vols., 
London  and  Hongkong,  1898. 

3  Two  of  the  leading  authorities  on  French  consular  jurisdiction  are 
Feraud-Giraud,  De  la  juridiction  frangaise  dans  les  6chelles  du 
Levant  et  de  Barbarie,  2d  ed.,  2  vols.,  Paris,  1871,  and  De  Clercq  and  De 
Vallat,  Guide  pratique  des  consulats,  5th  ed.,  2  vols.,  Paris,  1898. 
Fferaud-Giraud  contains  annotations  upon  the  principal  legislation 
and  upon  decided  cases.  De  Clercq  and  De  Vallat  give  the  text  of 
legislation  and  many  other  documents  pertaining  to  the  jurisdiction. 

As  to  the  law  in  force  see  F6raud-Giraud,  vol.  2,  p.  227-439,  and 
De  Clercq  and  De  Vallat,  vol.  1,  p.  526-606. 


FRENCH   MUNICIPAL  AND   ASSESSOR   SYSTEMS         73 


From  the  sixteenth  far  into  the  nineteenth  century  there 
existed  many  distinct  communities  of  French  merchants  in 
the  Turkish  dominions,  the  political  organization  of  which 
was  provided  in  and  controlled  by  royal  edicts  and  other 
laws.  Each  of  these  communities  or  groups  of  French  in  one 
of  the  echeUcs  du  Levant  ^  was  called  a  nation.  Each 
nation  was  to  be  assembled  by  the  consul  at  least  annually 
for  deliberation  and  action  upon  matters  pertaining  to  its 
welfare.  In  December  of  each  year — so  it  was  provided  in  a 
royal  ordinance  of  1781 — the  nation  was  to  elect  deputies 
whose  function  it  was  to  assist  the  consul  in  general  admin- 
istration of  the  affairs  of  the  community.  Thus  the  nation 
of  former  times,  with  its  deputies,  bears  much  resemblance 
to  the  present  foreign  municipalities  in  China  and  indeed 
seems  to  have  formed  a  prototype  for  them.- 

A  second  institution  which  originated  in  the  French  sys- 
tem of  foreign  jurisdiction  is  that  of  having  the  consular 
judge  aided  by  assessors.  By  the  ordinance  of  1681  the  con- 
sular tribunal  for  all  cases  of  whatever  nature  or  importance 
was  to  consist  of  two  deputies  and  four  notables  or  lead- 
ing merchants,  making,  with  the  cons'il,  a  court  of  seven 
judges.  The  difficulty  of  finding  as  many  such  assessors  as 
the  law  required  led  to  the  reduction  of  the  number  by  edict 
of  1722  from  six  to  two,  and  either  deputies  or  notables 
might  be  summoned  by  the  consul.  But  if  notables  were 
summoned  they  were  to  be  the  two  that  had  been  appointed 
by  the  French  Minister  of  Foreign  Affairs  from  a  list  sub- 
mitted by  the  consul  to  hold  the  office  of  assessor  for  one 
year.  The  function  of  the  assessors  in  the  French  system  is 
to  assist  the  consul  in  deciding  both  as  to  fact  and  as  to  law.* 
From  the  French  system  the  plan  of  having  assessors  has 
been  adopted  into  the  British  and  American  systems. 


Origin 

of   for- 
eign   mu- 
nicipali- 
ties 


Develop- 
ment of 
the   as- 
sessor 
system 


'  Tlie  term  cchelles  or  ladder  refers  to  the  wharves  or  landing  places 
of  ships  In  the  Levant. 

'  Feraud-Giraud,  Juridiction  francaise,  vol.  2,  p.  67;  De  Clercq  and 
De  Vallat,  Guide  pratique,  vol.  1,  p.  328. 

» FSraud-Giraud,  Juridiction  frangaise,  vol.  2,  p.  270,  390;  De  Clercq 
and  De  Vallat,  Guide  pratique,  vol.  1,  p.  528,  563. 


74 


EXCELLENCE  OF  EUROPEAN  SYSTEMS 


Appel- 
late 
courts 


Further 
develop- 
ment 
of   the 
Ameri- 
can 
system 


Like  the  British  system,  the  French  has  special  courts  of 
appeal.  From  judgments  in  consular  courts  in  the  Levant, 
including  the  Barbary  States,  appeal  lies  to  the  court  at  Aix, 
near  Marseilles;  from  China,  Siam  and  Korea,  to  the  court 
at  Saigon,  in  Cochin-China.  In  fact  the  provisions  for 
appeal  to  courts  within  the  national  territory  are  much  more 
complete  in  the  foreign  jurisdictional  systems  of  all  the 
European  states  than  they  are  in  the  American  system. 
This  is  due  in  part,  no  doubt,  to  the  proximity  of  these 
countries  to  the  Levant;  but  in  general  the  European 
consular  systems,  especially  the  German,  have  been  sub- 
ject to  more  frequent  legislation  in  recent  years  than  the 
American. 

Consular  jurisdiction,  as  administered  by  Great  Britain 
and  France,  at  least,  is  a  system  to  which  much  legislative 
and  executive  attention  has  been  given.  If  it  is  possible  by 
prescribing  minutely  what  the  law  is,  by  selecting  trained 
men  to  apply  it  and  by  setting  up  superior  courts  of  appeal 
with  an  ultimate  review  in  difficult  cases  by  the  highest 
courts  at  home — if  it  is  possible  to  make  foreign  jurisdiction 
adequate  to  the  sitiiation,  then  the  many  legislative  acts, 
decrees,  orders  and  opinions  found  in  the  public  documents 
of  France  and  England  attest  that  all  is  being  done  by  these 
two  powers  that  can  be  done  to  make  their  systems  of  extra- 
territorial jurisdiction  satisfactory  and  sufficient. 

That  the  administration  of  justice  in  American  consular 
courts  has  twice,  once  in  1848  and  again  in  1860,  been,  as  a 
system,  subject  to  action  by  Congress,  and  then  without  de- 
bate, is  not  to  be  taken  as  proof  of  the  sufl&ciency  of  our 
existing  legislation.  In  1881  President  Arthur  stated  in  his 
annual  message  that  changes  in  the  system  were  desirable, 
and  he  transmitted  an  opinion  of  Secretary  of  State  Blaine 
in  regard  to  the  direction  which  these  changes  might  profit- 
ably take.^  Mr.  Blaine's  leading  points  were :  that  the  exist- 
ing statutes  lacked  clearness,  precision  and  comprehensive- 
ness and  did  not  provide  for  the  settlement  of  conflicts  of 


>  Sen.  Ex.  Doc.  21  (vol.  1),  47th  Cong.,  1st  Sess. 


PROPOSED   AMERICAN   IMPROVEMENTS  75 

jurisdiction;  that  certain  amendments  could  be  introduced 
to  remove  unnecessary  inconsistencies  with  the  Constitution; 
and  that  men  of  legal  training  should  be  chosen  for  certain 
judicial  oflBces  independent  of  the  consular  system  and  not 
concerned  with  commercial  affairs ;  and  he  recommended  the 
establishment  of  a  separate  system  of  courts,  at  least  in 
China,  with  an  appellate  court  at  Shanghai.  After  pointing 
out  the  increasing  difficulties  under  the  existing  law,  Mr. 
Blaine  continued:  "If,  on  the  whole,  the  administration  of  Mr. 

.  .   .  ,  Blaine  s 

consular  lustice  abroad,  in  favor  of  American  citizens,  has  opinion 
worked  with  considerable  regularity,  utility  and  success,  this  American 

'^  ''  ...         system 

result  has  been  due  rather  to  the  right  of  extraterritoriality 
itself,  and  to  the  average  common  sense  of  business  officers 
to  whom  the  exercise  of  that  right  has  been  so  broadly  com- 
mitted, than  to  the  constitutionality  or  precision  of  the 
statutes.  And  it  may  be  doubted  whether  the  naked  fact 
that  an  arbitrary  and  practically  unlimited  delegation  of 
judicial  powers  has  been  followed  in  the  main  by  a  discreet 
use  thereof,  is  a  sufficient  argument  for  the  conferment  of 
those  powers,  or  their  unmodified  continuance  for  all  time." 
The  year  following,  Mr.  Frelinghuysen,  Secretary  of  State, 
wrote  to  Mr.  Windom,  Chairman  of  the  Foreign  Relations 
Committee  of  the  Senate,  that  an  examination  of  the  exist- 
ing legislation  and  comparison  of  it  with  the  legislation  of 
Great  Britain  and  France  upon  the  same  subject  would 
"probably  be  sufficient  to  satisfy  the  committee  how  far  the 
American  in  these  foreign  colonies  fails  to  receive  from  his 
government  the  protection  which  is  accorded  to  other  for- 
eigners." ^ 

1  Sen.  Misc.  Doc.  89,  p.  3  (vol.  1),  47th  Cong.,  1st  Sess. 

A  long  memorial  sent  to  Congress  in  1881  by  American  residents  In 
Japan,  praying  for  legislation  modifying  certain  antiquated  rules  of 
common  law  in  force  under  the  foreign  jurisdiction  but  already  modi- 
fled  by  legislative  action  in  the  several  states  of  the  union,  read  In 
part  as  follows:  "For  us  there  is  no  statute  of  frauds.  There  is  no 
insolvency  legislation.  .  .  .  Imprisonment  for  debt  has  not  been 
abolished.  The  disabilities  of  women  at  the  common  law  have  re- 
mained unaltered.  We  have  no  statutes  of  limitations,  and  none  pro- 
viding for  conditional  bills  of  sale  or  chattel  mortgages.  In  many 
other  respects  Investigation  will  show  how  unfavorable  is  the  legal 
status  of  a  citizen  of  the  United  States  residing  here."  Sen.  Misc. 
Doc.  70  (vol.  1),  47th  Cong.,  1st  Sess. 


76  THE  DAVIS-O'CONNOR  BILL  OF  1882 

The  Accompanying  Mr.  Frelinghuysen's  letter  there  was  the 

O'Connor  draft  of  a  bill  drawn  by  Messrs.  Bancroft  Davis  and  O'Con- 
1^2  °  nor  for  the  Department  of  State.  The  bill  contemplated 
creating  three  district  courts  for  China,  one  at  Shanghai, 
another  at  Tientsin  and  a  third  at  Canton,  a  fourth  district 
court  for  Japan  and  a  supreme  court  at  Shanghai,  with  ap- 
peals from  consular  courts  to  these  courts  instead  of  to  the 
court  of  the  minister  or  the  United  States  district  court  in 
California.  There  was  to  be  one  district  judge  for  China 
and  another  for  Japan,  each  to  have  a  clerk  of  court  and  an 
interpreter  and  to  be  occupied  solely  with  judicial  as  distinct 
from  consular  commercial  functions.  The  two  judges  and 
the  consul-general  sitting  together  in  Shanghai  or  Yoko- 
hama were  to  constitute  the  supreme  court  for  China  or 
Japan  as  the  case  might  be.  The  judges  were  together  to 
make  rules  of  court  for  the  conduct  of  all  causes  in  the  con- 
sular and  superior  courts.  The  existing  method  of  sitting 
with  associates  in  the  trial  of  certain  cases  was  to  be  modi- 
fied to  the  extent  of  requiring  trial  by  jury  of  five  citizens, 
or  if  five  were  unobtainable,  then  by  three.  But  crimes  pun- 
ishable with  death  were  to  be  tried  and  punished  as  under 
the  present  law.  This  plan  of  trial  by  jury  included  cases 
arising  in  Turkey  also,  and  appeals  in  civil  cases  of  more 
than  one  thousand  dollars  in  value  could  be  made  to  the 
consul-general  at  Constantinople.  Many  details  insufiicient- 
ly  or  not  at  all  prescribed  in  the  existing  law,  as  of  bank- 
ruptcy, marriage,  rights  under  international  municipalities, 
rights  in  mixed  cases,  evidence,  fraudulent  transactions, 
inheritance,  partnership,  jury  duty  and  many  other  points  of 
difficulty  which  had  arisen  in  the  course  of  administering 
justice  in  the  consular  courts,  were  provided  for  in  the  pro- 
posed law.  Finally,  the  Secretary  of  State  and  the  Attorney- 
General  were  authorized  to  prepare  a  code  of  practice  to  sup- 
ply defects  and  deficiences  in  the  existing  remedies  and  to 
draw  up  regulations  for  carrying  the  act  into  effect ;  and  the 
code  and  regulations  when  approved  by  the  President  were 
to  have  the  force  of  law.^ 

»  Sen.   Misc.   Doc.   89,   p.   210  (vol.  1),  47th  Cong.,   1st  Sess.;  Ho.  Rep. 
2250,  p.  1-8,  48th  Cong.,  2d  Sess. 


THE    SPOONER-DENBY    ACT,    1906  77 

The  bill  was  much  modified  by  the  Senate.  Another  bill 
was  introduced  in  the  House  in  1884,  but  no  action  beyond 
receiving  the  report  was  taken.^ 

The  consular  service  reorganization  bills  introduced  in 
recent  years  by  Senators  Lodge  and  Morgan  and  Mr.  Adams 
contained  provisions  requiring  legal  training  of  consuls  in 
whom  judicial  authority  would  be  vested. 

The  Act  of  April  5,  1906,  reorganizing  the  consular 
service,  only  indirectly  affects  the  exercise  of  extraterri- 
torial jurisdiction.^ 

Early  in  the  first  session  of  the  Fifty-ninth  Congress  a  Act  of 
bill  to  create  a  United  States  court  for  China  was  introduced  i906,  ere- 
in  the  Senate.     Late  in  March,  1906,  Mr.  Edwin  Denby,  of   u.  s. 

court  for 

Michigan,   introduced  a  bill  in  the   House.     Mr.   Denby's  China 
large  knowledge  of  American  relations  with  China  enabled 
him  to  persuade  his  colleagues  of  the  necessity  and  advan- 
tage of  creating  the  United  States  court  for  China. 

The  bill  was  reported  in  the  Senate  with  much  amend- 
ment. The  great  advantage  of  being  advocated  by  Senator 
Spooner,  with  whom,  as  with  Mr.  Denby,  officials  of  the 
State  Department,  the  Solicitor,  Dr.  J.  B.  Scott,  and  others, 
were  in  frequent  consultation,  brought  this  legislation  into 
the  form  it  took  in  the  Act  of  June  30,  1906.^  An  appro- 
priation for  the  salaries  of  officials  of  the  new  court  and  for 
other  expenses  was  made  in  a  separate  Act  of  the  same  date.* 

In  the  Executive  Order  of  June  37,  1906,  President  Roose- 
velt embodied  the  requirement  of  legal  training  for  consuls 
exercising  judicial  functions,  thus  facilitating  the  improve- 
ment of  the  service  as  planned  by  Mr.  Secretary  Eoot.° 

1  In  1904  Mr.  H.  H.  D.  Peirce,  of  the  State  Department,  upon  return- 
ing from  a  tour  of  inspection  of  American  consulates  in  Asia,  prepared 
the  draft  of  a  brief  bill  to  create  a  United  States  circuit  court  for 
China  and  Korea.  It  proposed  that  the  laws  of  the  District  of  Colum- 
bia be  extended  over  citizens  in  those  countries.  Appeals  were  to  lie 
to  the  supreme  court  of  the  Philippines  or  to  the  circuit  court  of 
appeals  at  San  Francisco.  Report  of  October  29,  1904;  without  docu- 
ment number.  Mr.  Peirce's  later  report,  December  15,  1904,  confiden- 
tial, was  eventually  printed  in  Ho.  Doc.  665,  59th  Cong.,  1st  Sess., 
p.   1-444 

2  Printed  infra,   Appendix  III-l.  » Printed    infra,  Appendix  III-2. 
*  The  General  Deficiency  Act. 

»  The  Order  Is  printed  infra,   Appendix  III-3. 


IV 


LEGAL  RIGHTS  UNDER  THE  JURISDICTION 


The  treaties  of  the  various  western  powers  with  any  ori- 
ental state  bear  a  close  resemblance  one  to  another  in  their 
provisions  regarding  extraterritoriality,  and  the  usages  in  a 
particular  country  have  an  almost  entire  uniformity  under 
whatever  national  jurisdiction  benefit  of  them  is  claimed; 
but  in  application  of  either  or  both  treaties  and  usages  to 
particular  cases  the  divergent  characteristics  of  each 
national  jurisdiction  appear. 

The  United  States  is  one  of  the  few  powers  the  large  ex- 
tent of  whose  intercourse  with  the  Orient  has  resulted  in 
developing  a  fairly  complete  body  of  precedents  and  de- 
cisions, executive  and  judicial,  relating  to  legal  rights  of 
individuals  under  foreign  jurisdiction. 


NATIONALITY 


Scope  of 
the    term 
Ameri- 
can  na- 
tionality 


So  far  as  extraterritorial  privileges  are  involved,  Ameri- 
can nationality  includes  all  persons,  whatever  their  civil 
status,  who  owe  allegiance  to  the  United  States  either  as 
citizens  by  birth  or  by  naturalization  or  as  native  inhabitants 
of  the  insular  possessions,  or  as  seamen  on  American  ships, 
or  as  assistants  or  guards  in  legations  and  consulates,  or,  to  a 
limited  extent,  as  employees  of  American  citizens  in  oriental 
countries. 

It  is  held  that  citizenship  acquired  by  naturalization  gives 


CITIZENiS  OF  TURKISH  ORIGIN  79 

an  equal  right  to  American  protection  abroad  with  citizen-  j^f-j^^^^jj,. 
ship  acquired  by  birth,  but  there  has  been  some  difficulty  in  ^f^jf^oj^ 
maintaining  this  doctrine  in  favor  of  naturalized  citizens  origrin. 
who  have  returned  to  the  country  of  their  former  allegiance. 
The  Turkish  government  has  declared  that  Turkish  subjects 
who  have  expatriated  themselves  without  permission  since 
1869,  when  a  law  of  nationality  was  decreed,^  are  not  to  be 
recognized  as  having  the  right  to  consular  protection  in 
Turkey  or  even  of  entering  the  country  or  remaining  in  it.'^ 
It  is  believed,  however,  that  the  Turkish  government  has  in 
no  instance  pressed  an  assertion  of  this  claim  upon  the  sole 
ground  of  unauthorized  expatriation.^  The  practice  of 
several  European  governments  is  not  to  naturalize  an  alien 
unless  he  proves  that  his  change  of  allegiance  has  been  per- 
mitted.* The  British  Naturalization  Act  of  1870  declares 
that  the  naturalization  of  an  alien  shall  be  without  force  and 
effect  when  he  returns  to  the  country  of  his  original  alle- 
giance unless  by  the  laws  thereof  or  by  treaty  between  that 
country  and  Great  Britain  his  change  of  status  is  recog- 
nized;^ and  an  indorsement  to  this  effect  is  made  upon  all 
British  passports  issued  to  aliens.® 

The  Turkish  government  has  upon  several  occasions  per- 
mitted the  wives  and  minor  children  of  naturalized  citizens 
to  emigrate  to  the  United  States,  and  when,  under  the  laws 
of  the  United  States,  the  naturalization  of  the  husband  or 
father  has  effected  also  the  naturalization  of  the  wife  and 
children,  the  permission  to  emigrate  has  been  demanded  as 
of  right. '^ 

»  Brit,  and  For.  State  Papers,  vol.  67,  p.  1251. 

»  For.  Rel.  1900,  p.  938;  see  also  For.  Rel.  1871,  1886,  1892-1897  passim. 

8  For.  Rel.  1895,  pt.  2,  p.  1471. 

*  Hall,   International  Law,   London,   1895,  p.   247. 
»33  and  34  Vict.,  c.  14. 

•  For.  Rel.  1894,  p.  762. 

'  For.  Rel.  1893,  p.  591,  598,  603,  649,  666;  1894,  p.  765;  1895,  pt.  2,  p.  1471; 
1896,  p.  924. 

The  effect  of  marriage  upon  the  nationality  of  a  woman  In  Turkey- 
Is  fully  discussed  by  Salem,  Jour,  du  droit  Internat.  priv6,  1901,  p.  936. 
and  1902,  p.  79. 

Marriage  of  a  Chinese  woman  to  a  German  was  declared  In  an 
agreement  in  1888  between  the  governments  of  the  two  countries  to 


80  PORBIGN  JEWS  IN  PALESTINE 

Incomplete  naturalization  ^  and  naturalization  irregularly 
effected  give  no  right  to  protection.  Neither  can  intention 
to  become  a  citizen  be  legally  declared  under  the  foreign 
jurisdiction  nor  can  residence  under  that  jurisdiction  be 
counted  as  residence  in  the  United  States  within  the  re- 
quirements of  the  naturalization  statutes.^ 
Restric-  It  has  been  the  policy  of  the  Ottoman  government  to  pre- 
upon  vent  the  immigration  into  Palestine  of  Jews  en  masse  who 

Jews  In  .  . 

Turkey  wish  to  establish  themselves  there  as  permanent  colonists. 
The  sojourn  of  Jewish  travellers  in  Palestine  has  been 
limited  to  one  month,  extended  in  1888  and  later  to  three 
months.  Another  restriction  has  been  that  of  requiring 
Jewish  purchasers  of  real  estate  in  Palestine  to  subscribe  to 
certain  exceptional  agreements.  Many  Jews  from  Europe 
and  some  from  the  United  States  have  entered  Palestine  for 
travel  or  settlement  under  these  conditions.  The  protest  of 
the  British  government  against  these  regulations  took  the 
ground  that  inasmuch  as  within  its  own  territory  it  was 
protecting  persons  of  every  class  and  creed  and  thus  in  no 
wise  causing  an  immigration  of  Jews  into  Turkey,  it  had  ad- 
ditional reason  for  not  admitting  that  Turkey  possessed  any 
right  to  exclude  or  restrict  British  Jews  in  the  enjoyment 
of  privileges  guaranteed  under  the  capitulations  and 
treaties.^  The  American  protest,  taking  similar  ground, 
declared  that  no  conditions  or  distinctions  could,  at  the 
instance  of  Turkey,  be  introduced  into  the  passports  issued 
to  American  citizens.*    Protection  would,  however,  be  with- 

make  the  Chinese  woman  subject  to  German  jurisdiction.  Notwith- 
standing the  statutory  inhibition  against  the  naturalization  of 
Chinese,  it  was  stated  by  Secretary  of  State  Bayard  that  the  agree- 
ment between  Germany  and  China  would  probably  "assist  in  deter- 
mining the  status,  in  China,  of  the  Chinese  wife  of  an  American 
citizen,  assuming  the  marriage  to  be  consensual  and  monagamous"; 
For.  Rel.  1888,  pt.  1,  p.  349;  see  also  p.  319,  347,  683;  and  infra,  p.  94. 

>  Cases  in  China,  For.  Rel.  1887,  p.  190,  210;  1896,  p.  91.    Cases  in  Tur- 
key, For.  Rel.  1885,  p.  849,  855. 

'  Application  of  Mr.   Gargiulio,   dragoman  of  the  American  legation 
at  Constantinople;  For.  Rel.  1893,  p.  692,  701. 

>  For.  Rel.  1888,  pt.  2,  p.  1590. 
♦  Ibid.,  p.  1617,  1627. 


ISSUE  OF  PASSPORTS  81 

drawn  from  Jews  permanently  settling  in  Palestine/  and 
restrictions  upon  the  purchase  of  real  estate  applicable  alike 
to  native  and  to  foreign  Jews  were  not  made  a  subject  of 
protest.^  The  American  representatives  in  Turkey  have 
been  instructed  to  remonstrate  against  any  detention  of 
baggage  or  other  method  of  enforced  guaranty  against  over- 
staying the  three  months'  sojourn  of  American  Jews  in  Tur- 
key.^ The  enforcement  of  rules  against  the  Semitic  coloni- 
zation of  Palestine  was  understood  not  to  restrict  the  rights 
of  bona  Me  travellers.*  The  American  minister,  Mr.  Straus, 
stated  that  in  justice  and  fairness  to  the  Turkish  govern- 
ment, its  disposition  to  be  liberal  toward  foreign  Jews  when 
no  political  complications  had  been  involved  must  be  ad- 
mitted.^ 

The  usual  evidence  of  right  to  American  protection  is   Pass- 

"  ports 

the  possession  of  a  passport,  but  the  lack  of  one  does  not 

prejudice  a  claim  to  protection  pending  investigation.  The 
issuance  of  passports  to  American  citizens  is  by  law  left  to 
the  discretion  of  the  Secretary  of  State.  In  foreign  coun- 
tries diplomatic  officers  have  authority  to  issue  passports 
under  prescribed  rules,  and  consular  officers  may  also  be 
specially  authorized  to  issue  them.*'  The  issuance  of  pass- 
ports is,  however,  within  certain  limits,  discretionary. 

It  is  customary  for  persons  who  intend  to  travel  in  the  Turkish 
interior  of  Turkey  to  obtain  through  a  consulate  special  cer- 
tificates or  permits,  called  teskerehs,  issued  by  the  Turkish 
government.  In  1898,  at  a  time  of  apprehended  revolution- 
ary disturbances,  there  was  some  delay  in  granting  these 
travel  permits,  but  the  right  to  refuse  them  was  not  claimed^ 
and  under  the  stipulation  of  freedom  of  travel  contained  in 
the  capitulations  ^  the  right  to  refuse  them,  unless  as  a 


1  For.   Rel.  1894,   p.  752-64. 

2  For.  Rel.  1898,  p.  1107. 
»  For.  Rel.  1894,  p.  752. 
«  For.  Rel.  1898,  p.  1092. 
» Ibid.,   p.   1093. 

•  Rev.   Stat.,   Sec.   4075. 
'  For.  Rel.  1898,  p.  1095. 

•  Capitulations  of  1740,  Art.  20. 


INSPECTION  OF  PASSPORTS 


Chinese 
travel 
certi- 
ficates 


Vise  of 
pass- 
ports by 
native 
officials 


necessary  means  of  protection  to  the  state,  would  not  appear 
to  exist. 

For  citizens  intending  to  travel  in  the  interior  of  China  a 
special  form  of  travel  certificate  has  been  authorized. 
Under  the  rules  of  May  1,  1890,  travel  certificates  could  be 
issued  by  consuls  to  citizens  who  had  already  attained  pass- 
ports or  who  had  applied  for  them.  For  citizens  with  pass- 
ports the  travel  certificates  were  'made  good  for  one  year,  for 
others,  good  only  for  the  particular  journey  and  not  longer 
than  one  year.  ^  The  earlier  practice  had  been  to  issue  all 
travel  certificates  only  for  particular  journeys.  The  rule  of 
the  British  treaty  with  China  of  1858  that  'passports  must 
be  produced  for  examination  in  the  localities  passed 
through'  is  construed  to  mean  that  on  proper  demand  by  a 
proper  official,  as  the  magistrate  of  a  chou  or  hien,  passports 
must  be  exhibited,  but  that  the  traveller  need  not  volun- 
tarily show  his  passport  nor  go  out  of  his  way  to  hunt  up  an 
official  for  the  purpose  of  showing  it.- 

If  native  offieials  vise  a  passport  the  effect  is  only  to  give 
convenient  certification  to  other  native  officials.  The  Turk- 
ish regulations  of  February  9,  1884,  required  that  passports 
of  foreigners  entering  Turkey  should  bear  the  vise  of  an  Ot- 
toman minister  or  consul,  and  that  within  six  months  of  ar- 
rival in  Turkey  the  passports  should  be  presented  to  the  Ot- 
toman authorities  and  permits  of  sojourn  be  obtained;  the 
foreign  ministers  at  Constantinople  informed  the  Ottoman 
Porte  that  their  governments  declined  to  acquiesce  in  the 
enforcement  of  these  regulations  to  the  prejudice  of  their 
citizens  and  subjects.  ^  When  naturalized  citizens  of  Tur- 
kish origin  were  found  possessed  of  passports  issued  by 
Turkish  officials,  the  taking  out  of  those  passports  was  held 
to  have  dissolved  the  obligation  of  the  United  States  to  pro- 
tect the  holders  of  them.  * 


iFor.  Rel.  1890,  p.  182. 

«For.  Rel.  1894,  p.  152;  1897,  p.  98,  102. 

•For.  Rel.  1888,  pt.  2,  p.  1563. 

«For.  Rel.  1894,  p.  757,  761;  1900,  p.  934. 


REGISTRATION 


83 


Besides  the  method  of  certifying  to  nationality  by  means 
of  a  passport,  there  is  also  the  method  of  registration  at  a 
consulate.  In  the  British  system  registration  is  required  by 
law  under  liability  to  be  fined  or  to  lose  the  right  to  pro- 
tection, although  failure  to  register  does  not  exempt  a  sub- 
ject from  prosecution  in  a  British  consular  court.^  In  the 
American  system  registration  is  not  made  compulsory  by 
statute  and  possibly  cannot  be  made  so  by  a  regulation  issued 
by  a  minister.  ^  A  passport  is  considered  in  itself  sufficient, 
and  no  additional  evidence  of  citizenship,  either  by  way  of  re- 
gistration or  by  way  of  certificate  in  the  native  language  ob- 
tained at  the  consulate  or  through  it,  can  be  held  to  restrict 
the  effect  of  a  passport.^  But  where  registration  is  only  a 
local  police  requirement,  a  consul  may  encourage  his  fellow- 
countrymen  to  register,  although  he  cannot  oblige  them  to 
do  so."  Under  Article  V  of  the  treaty  of  March  17,  1894, 
between  the  United  States  and  China,  the  United  States 
agrees  to  furnish  annually  to  China  a  register  or  report  of 
American  citizens  in  China  and  such  registers  are  prepared 
by  the  consuls  under  instructions  from  the  Department  of 
State.^ 

The  formerly  extensive  and  much  abused  protege  system 
in  the  Levant,  under  which  foreigners  of  various  national- 
ities and  considerable  nu-mbers  of  native  subjects  could, 
upon  the  slight  formality  of  enrolling  their  names  at  a  con- 
sulate, receive  its  protection,  was  gradually  restricted  by 
consent  of  the  foreign  powers  until  in  1862®  the  Ottoman 
Porte  decreed  a  regulation  strictly  limiting  the  number  of 
proteges  to  four  dragomans  and  four  yassakdjis,  cavasses  or 
guards  for  each  consul-general  and  each  consul  in  the  larger 
cities  and  to  a  lesser  number  for  other  consular  officers. 


Regis- 
tration 


Restric- 
tion of 
the  pro- 
tege  sys- 
tem In 
the  Le- 
vant 


*  Hall,  Foreign  Jurisdiction,  p.  129. 

*For.  Rel.  1873,   pt.  1,  p.  570;  supra,   p.  55. 

»  For.  Rel.  1884,  p.  539,  546,  556. 

*For.  Rel.  1878,  p.  864. 

»  For.   Rel.  1896,   p.  90. 

'  Archives  diplomatiques,  1863,  pt.  II,  p.  155;  De  Testa,  TraitSs,  vol.  1, 
p  228;  Aristarchi,  Legislation  Ottomane,  vol.  iv,  p.  15.  A  full  history 
of  the  prot6g6  system  and  an  explanation  of  the  present  restrictions 


84  DRAGOMANS 

Drago-  Some  question  has  arisen  as  to  the  extent  of  the  Drivi- 

mans  ^ 

and  leges  to  DO  accoided  to  these  dragomans  and  yassakdjis  or 

cavasses.  A  dragoman  named  Costa,  of  the  consular  agency 
at  Salonica,  was  sued  in  1897  as  indorser  of  a  due  and  un- 
paid promissory  note,  and  although  his  official  relations  had 
been  recognized  by  issuing  the  summons  to  him  through  the 
consular  agency,  the  tidjaret  or  court  refused  to  permit  the 
presence  of  the  two  assessors  and  a  second  dragoman,  al- 
lowed by  law  to  American  protected  persons  in  such  cases, 
and  proceeded  to  trial  and  gave  judgment  in  their  absence 
and  in  the  absence  of  the  defendant.  The  Turkish  govern- 
ment affirmed  the  regularity  of  this  proceeding  and  stated 
that  according  to  the  ninth  article  of  the  regulations  of  1863 
for  foreign  consulates,  Mr.  Costa,  being  of  Ottoman  origin, 
was,  in  respect  to  his  private  affairs,  subject  to  Ottoman 
jurisdiction  exclusively.  The  American  minister,  Mr.  J.  B. 
Angell,  then  called  attention  to  the  language  of  the  ninth 
article  which  provided,  not  that  Ottoman  subjects  in  the 
service  of  foreign  governments,  but  those  in  the  service  of 
foreign  subjects,  should  be  under  Ottoman  jurisdiction  ex- 
clusively. It  was  proper  enough,  said  the  minister,  that  an 
Ottoman  subject,  the  clerk  of  a  foreigner,  should  be  treated 
like  any  other  Ottoman  subject  in  respect  to  his  private 
affairs,  but  the  dragoman  of  a  consul  could  not  be  inter- 
rupted in  his  official  duties  by  vexatious  suits  in  which  he 
might  not  invoke  the  presence  of  a  consular  representative 
to  see  that  the  interests  of  the  consulate  were  properly  pro- 
tected. This  opinion  and  the  action  of  the  minister  were 
approved  by  the  Department  of  State.^  A  different  opinion 
was  given  in  the  case  of  the  ejection  from  possession  of  a 
house  of  the  family  of  a  consular  cavass  at  Jerusalem  in 
1888.   Although  the  manner  of  eviction  doubtless  warranted 


upon  it  is  given  in  Rey,  La  protection  diplomatique  et  consulaire  dans 
les  fechelles  du  Levant  et  de  Barbarie,   Paris,  1899,   p.   244-305. 

>  For.  Rel.  1898,  p.  1109.  See  also  the  case  of  Dragoman  Avedikian  of 
the  consulate  at  Smyrna,  whose  business  in  the  interior  was  inter- 
fered with  by  local  authorities  and  the  interference  disapproved  of  by 
the  Porte;  For.  Rel.  1900,  p.  920;  one  of  the  features  of  this  case  was 
that  an  American  consular  cavass  was  arrested. 


PROTECTED  NATIVES  85 

some  redress,  it  was  concluded  by  the  Department  of  State 
that  real  estate  held  by  Ottoman  subjects  was  not  taken  out 
of  Turkish  jurisdiction  when  such  subjects  became  cavasses 
in  the  consulates.^  Originally  the  Turkish  subjects  engaged 
to  render  services  in  the  foreign  legations  and  consulates 
were  exempted  from  military  service  by  virtue  of  Article  V 
of  the  Eeglement  consulaire,  but  in  1889,  upon  expiration  of 
the  period  named  in  that  article,  the  Porte  announced  that 
these  subjects  would  be  liable  to  military  duty,  the  Mussul- 
mans to  actual  service  and  the  Christians  to  the  exonerating 
tax;  but  the  American  and  British  ministers,  representing 
the  inconvenience  the  enforcement  of  this  measure  would 
entail,  requested  that  the  exemption  be  continued.-  It  is 
the  policy  of  the  United  States  to  limit  to  as  few  as  may  be 
absolutely  necessary  the  persons  exempt  frcm  the  local 
jurisdiction  through  their  being  attached  to  legations  and 
consulates  as  assistants,  guards  or  servants  and  to  maintain 
with  firmness  the  protection  of  those  who  are  thus  engaged;^ 
and  acceptance  of  employment  at  a  consulate  with  the  in- 
tention of  evading  responsibilities  under  the  local  law,  such 
as  taxation  or  military  service,  gives  ground  for  redress 
only  when  the  action  of  the  local  authorities  is  abrupt. 

The  Chinese  employee  of  a  citizen  or  subject  of  a  treaty   Chinese 
power  on  the  Anglo-American  settlement  at  Shanghai  may   pioyees 
not  be  arrested  except  upon  warrant  signed  by  the  senior 
consul,  and,  if  arrested,  he  may  not  be  tried  before  a  native 

'  For.  Rel.  1888,  pt.  2,  p.  1563,  15G8,  1602. 

'  For.  Rel.  1889,  p.  724,  728.  In  1888  two  men,  a  guard  of  the  Greek 
consulate  at  Jerusalem  and  a  British  Moslem  subject  at  Jerusalem, 
were  impressed  into  the  Turkish  army;  For  Rel.  1888,  pt.  2,  p.  1571. 

»  For.  Rel.  1871,  p.  890,  900.  See  also  MSS.  Inst.  Turkey  and  other 
documents  in  Wharton,   Internat.  Law  Digest,  vol.  1,   p.  676-7. 

An  extreme  view  of  the  immunity  of  legation  on  the  part  of  a  Brit- 
ish minister  to  Japan  is  stated  in   For.    Rel.   1874,   p.   697. 

In  the  capitulations  the  consular  guards  are  named  janissaries. 
Protection  of  the  legations  at  Peking  has  been  afforded  not  by  native 
employees,  but  by  foreign  military  and  naval  forces.  There  was  no 
provision  in  the  treaties  of  1858  for  such  a  guard;  its  introduction  in 
1895  was  made,  however,  with  the  consent  of  China;  For.  Rel.  1895,  pt. 
1,  p.  198. 

The  protocol  between  the  Powe  rs  and  China  of  September  7,  1901, 
Article  "VII,  permits  a  permanent  guard  for  each  legation  in  the  en- 
closure set  apart  for  the  legations;  For.  Rel.  1901,  Appendix,  p.  316. 


86 


STATUS  OF  EMPLOYEES 


Native 
converts 


Joint- 
stock 
com- 
panies 


Foreign- 
ers em- 
ployed 
by  native 
govern- 
ments 


court  outside  of  the  settlement  until  there  has  been  a  pre- 
liminary examination  in  the  Chinese  or  mixed  court  on  the 
settlement  with  the  result  of  showing  reasonable  ground  for 
the  accusation;  furthermore,  unless  the  crime  with  which  he 
is  charged  is  of  the  class  punishable  with  death  or  banish- 
ment, the  trial  is  to  take  place  in  the  Chinese  court  on  the 
settlement.^  It  is  believed  that  a  corresponding  immunity 
extends  to  Chinese  employees  of  foreigners  in  other  ports,^ 
and  in  some  measure  to  the  business  associates  or  compra- 
dores  of  foreign  merchants.^ 

But  foreign  protection  does  not  in  the  slightest  degree  ex- 
tend to  native  converts  to  Christianity  as  such,  and  whatever 
missionaries  may  do  in  their  behalf  can  be  only  in  the 
nature  of  friendly  assistance  with  permission  of  the  local 
government.  Both  the  Chinese  and  the  Turkish  govern- 
ments are  under  treaty  obligation  not  to  discri-minate  against 
native  converts.* 

The  determination,  for  purposes  of  jurisdiction,  of  the 
nationality  of  a  corporation  doing  business  in  an  oriental 
country  appears  to  depend  principally  upon  evidencf>  found 
in  its  charter  or  in  the  franchise  under  which  it  operates  in 
a  particular  country;  ^  and  the  nationality  of  a  commercial 
firm  without  a  charter  or  a  franchise  has  been  held  to  be  the 
same  as  the  nationality  of  its  principal  officer.^ 

Foreigners  engaged  in  the  imperial  customs  service  of 
China  are  privileged  from  being  compelled  to  give  evidence 
in  consular  courts;  but  if  a  foreigner,  while  performing  his 
official  duties,  wounds  or  kills  any  one,  he  is  required  by  the 
customs  regulations  to  resign  his  place  at  once  and  report 
to  his  consul;  if  convicted,  his  resignation  is  considered  per- 


>Sen.  Ex.   Doc.   36,   p.   31     (vol.    1),    53d    Cong.,    3d    Sess.;    infra, 
p.  171-6. 

»For.   Rel.  1900,   p.  394. 

»  For.  Rel.   1883,  p.  156. 

*  Infra,  p.   110,   115,   119,   121. 

'  See  Mr.  Salem's  note  to  a  case  tried  In  the  French  consular  court 
at  Constantinople  in  1899,  Jour,  du  droit  Intemat  priv6,  1900,  p.  663. 

*  Scldmore,  U.  S.  Courts  in  Jai>an,  p.  227. 


FOREIGNERS  AS  AMERICAN  SEAMEN  87 

manent;  if  acquitted,  he  may  resume  his  place  with  full  pay 
from  the  time  of  his  resignation.^ 

A  regulation  is  reported  to  have  heen  issued  in  Turkey  in 
1899,  under  which  foreigners  entering  the  service  of  the 
Turkish  government  are  obliged  to  furnish  a  certificate  from 
their  consuls  that  consular  jurisdiction  shall  not  extend  to 
cases  arising  in  the  exercise  of  their  official  services  to  the 
government.^ 

It  is  a  rule,  believed  now  to  he  generally  accepted,  that  for  Foreign- 
purposes  of  protection  a  seaman,  duly  enrolled  as  a  member  ployed  as 
of  the  crew  of  a  merchant  ship  of  a  nationality  different  on  Amer- 
from  his  own,  is  to  be  regarded  of  the  same  nationality  as  siSps 
the  ship  on  which  he  serves.  In  1881  in  the  diplomatic 
correspondence  between  the  United  States  and  Great 
Britain  concerning  the  right  to  exercise  jurisdiction  over 
John  Ross,  a  British  subject  but  a  seaman  on  an  American 
ship,  for  a  crime  committed  on  the  ship  in  the  harbor  of 
Yokohama,  the  American  authorities  took  the  position  that 
the  proper  control  of  the  crew  of  a  merchant  ship  in  the 
waters  of  a  country  where  extraterritoriality  prevails  re- 
quires that  the  members  of  the  crew,  foreigners  as  well  as 
native  born,  be  subject  to  the  same  national  jurisdiction  as 
the  ship.  It  does  not  appear  that  the  British  government 
declined  to  acquiesce  in  this  proposition.  When  the  Eoss 
case  came  before  the  Supreme  Court  in  1890,  the  view  ex- 
pressed in  the  correspondence  with  Great  Britain  was  held 
by  the  court  to  determine  the  status  of  the  prisoner.  There- 
fore the  rule  in  its  full  breadth,  as  applicable  in  American 
consular  courts  where  extraterritoriality  exists,  is  that  all 
persons  duly  enrolled  as  members  of  the  crew  of  an  Ameri- 
can ship  are  subject  to  American  jurisdiction  alone.^ 

»  For.  Rel.  1881,  p.  257. 

»Jour.  du  droit  internat.  priv^,  1899,  p.  223;  Moniteur  oriental,  No- 
vember 28,  1898. 

'  Consular  Regulations,  Par.  629.  Previously,  the  full  jurisdiction  ex- 
tended only  to  seamen  on  naval  vessels;  McCondrlU's  case,  For.  Rel. 
1885,  p.  556,  and  instruction  of  November  2,  1875,  quoted  in  Wharton, 
Internat.  Law  Digest,  vol.  1,  p.  808.    Hall,  Foreign  Jurisdiction,  p.  142, 


88 


FRIENDLY  OFFICES  NON-JUDICIAL 


Friendly 
offices 
toward 
foreign- 
ers are 
non- 
Jurls- 
dlctlonal 


American  consuls  have  at  times  been  instructed  to  exer- 
cise friendly  offices  in  behalf  of  persons  of  other  nation- 
ality than  their  own.  This  was  the  case  during  the  war  of 
1894-5  between  China  and  Japan,  when  American  consuls 
in  both  countries  exercised  friendly  offices  toward  Chinese 
and  Japanese,  but  without  assuming  any  jurisdiction  over 
them.^  Instances  of  friendly  offices  in  time  of  peace  fre- 
quently occur  in  the  Levant.  The  British  and  American 
consuls  in  the  interior  of  Turkey  have  thus  cooperated  in 
the  protection  of  missionaries.^  At  the  request  of  Switzer- 
land and  with  the  consent  of  their  own  governments,  con- 
suls of  different  nationalities  have  even  exercised  civil  and 


holds  that  protective,  but  not  punitive,  jurisdiction  can  be  exercised 
by  British  consuls  over  foreign  seamen  on  British  ships.  The 
ground  taken  by  Hall  resembles  that  which  had  been  previously 
elaborated  in  the  able  brief  of  Professor  G.  W.  Kirchwey,  counsel 
for  petitioner  in  In  re  Ross,   140  U.   S.   453. 

Three  Filipinos,  seamen  on  board  the  American  transport  Liscum, 
were  tried  in  1902  in  the  consular  court  at  Shanghai  for  the  murder  of 
a  Chinaman;  North  China  Herald,  vol.  Ixix,  p.  1248,  1304,  December 
10,  17.  1902. 

The  minor  offenses  of  naval  seamen  on  shore-leave  are  under  con- 
current Jurisdiction  of  the  consular  and  naval  authorities:  For.  Rel. 
1888,  pt.  2,  p.  1665. 

A  foreigner,  the  master  of  an  American  owned  unregistered  mer- 
chant vessel,  sailing  under  an  American  flag,  and  whose  name  was 
borne  upon  the  ship's  articles,  was  held  to  be  under  the  jurisdiction 
of  the  American  consular  court  at  Kanagawa  in  1886  for  a  crime 
committed  in  Japan;  U.  S.  v.  Fullert;  Scidmore,  U.  S.  Courts  in 
Japan,  p.  229. 

Chinamen  employed  as  seamen  on  American  ships  have  the  status 
of  American  seamen,  even  in  Chinese  waters;  For.  Rel.  1892,  p.  343.  A 
Japanese  seaman  on  an  American  naval  vessel  was  held  subject  to 
American  consular  jurisdiction  in  1882  for  a  crime  committed  in  Ja- 
pan; 7n  re  Ikada  Tomekichi,  Scidmore,  U.  S.  Courts  in  Japan,  p.  229. 

The  jurisdiction  does  not  extend  to  the  families  of  seamen;  For. 
Rel.  1888,  pt.  2,  p.  1075,  1079. 

Conviction  in  a  consular  court  of  having  committed  a  felony  oper- 
ates at  once  to  withdraw  American  privileges  from  an  alien  member 
of  an  American  crew;  For.  Rel.  1888,  pt.  2,  p.  1665.  Desertion  has  the 
same  effect;  For.  Rel.  1885,  p.  556. 

It  was  held  by  Mr.  Bingham  that  an  Austrian,  a  seaman  deserting 
from  the  American  naval  service  in  Japan,  was  not  entitled  to  con- 
sular relief;  For.  Rel.  1885,  p.  556.  But  in  1856  a  British  subject,  a 
deserter  not  then  legally  discharged  from  service  on  an  American 
ship,  was  tried  in  the  American  consular  court  at  Canton;  Sen.  Ex. 
Doc.  22,  p.  820  (vol.  9),  35th  Cong.,  2d  Sess. 

1  Infra,  p.  174-5. 

»For.    Rel.    1882,    495,    501. 


STRICT  RULE  OF  NATIONALITY  IN  CHINA 


89 


criminal  jurisdiction  over  citizens  of  Switzerland  in  Turkey, 
Egypt  and  the  Barbary  States.^ 

But  such  an  extension  of  extraterritorial  jurisdiction  has 
not  been  consented  to  by  China.  The  subjects  of  non-treaty 
powers  in  China  are  not  privileged  to  have  any  other  juris- 
diction than  that  of  the  Chinese  courts.  The  American 
government  disapproved  the  action  of  a  consul  at  Canton  in 
1872  when  he  assumed  to  try  a  citizen  of  New  Granada,  not- 
withstanding the  accused  had  assented  to  be  tried.-  In  1903 
upon  request  of  the  Republic  of  Cuba  and  with  the  consent 
of  various  foreign  governments,  including  China,  the  United 
States  government  instructed  its  consuls  to  exercise  good 
offices  in  behalf  of  citizens  of  Cuba;  this  is  announced  as  a 
temporary  arrangement  intended  to  continue  until  Cuban 
consuls  shall  have  been  appointed.^  The  scope  of  the 
authority  conferred  is  briefly  defined  as  not  empowering  the 
consuls  "to  act  as  agents  of  Cuba  .  .  .  but  to  use  good 
offices,  as  intermediaries,"  reporting  only  to  the  Department 
of  State.*  Nothing  whatever  is  said  respecting  extraterri- 
toriality; upon  principle,  however,  this  privilege  would 
inhere  in  Cuban  citizens  in  Turkey,  though  not  in  China, 
and  there  appears  to  be  nothing  to  prohibit  the  issuance  of 
instructions  in  special  cases  for  the  exercise  of  jurisdiction 
over  a  Cuban  citizen  by  an  American  consul  in  Turkey. 

The  privileges  of  extraterritoriality  may  be  so  abused  as 
to  justify  the  expulsion  of  the  offender  from  the  country.^ 
This  measure  of  expulsion  or  deportation  was  provided  for 
in  the  treaty  of  July  29,  1858,  between  the  United  States 


Good 
offices 
toward 
Cubans 


Results 
of    abus- 
ing ex- 
trater- 
ritorial 
privi- 
leges 


1  In  1892  tlie  Frencli  consul  at  Constantinople  exercised  jurisdiction  in 
the  contest  of  the  will  of  a  Swiss  citizen,  applying  the  principles  of 
Swiss  law  to  the  case;  Jour,  du  droit  internat.  priv6,  1896,  p.  671. 
The  German  consul  at  Constantinople  tried  a  Swiss  citizen  for 
robbery,  and  the  expense  of  the  trial  was  charged  to  the  canton 
of  Lucerne;  Jour,   du  droit  internat.  privS,   1898,  p.   223. 

iiFor.  Rel.  1873,  pt.  2,  p.  139. 

3  For.  Rel.  1902,  p.  6,  234.  The  matter  does  not  appear  from  the  pub- 
lic documents  yet  to  have  been  taken  up  by  the  government  of  Tur- 
key; For.  Rel.  1902,   p.  1041. 

*  For.   Rel.  1902,   p.  329. 

IS  Infra,  p.  105-7.  As  to  restrictions  upon  Mormons,  see  For.  Rel.  1898, 
p.   1112. 


90 


EFFECT  OF  PROLONGED  RESIDENCE 


Effect 
of  pro- 
longed 
residence 
abroad 


and  Japan.    There  have  been  cases  of  exclusion  from  Tur- 
key, and  the  right  of  Egypt  to  expel  has  been  admitted.^ 

Prolonged  residence  under  extraterritorial  jurisdiction 
does  not,  as  it  would  in  a  European  country,  imply  renun- 
ciation of  citizenship  except  for  naturalized  citizens  who 
have  returned  to  the  country  of  their  origin.-  There  are 
many  such  naturalized  citizens  now  residing  in  Turkey,  and 
the  status  at  least  of  those  who  have  not  retained  member- 
ship in  an  American  community  in  Turkey,  that  is,  of  those 
who  have  completely  merged  themselves  in  the  native  popu- 
lation, is  doubtful.  How  long  a  period  it  is  that  causes  the 
right  to  American  citizenship  to  become  extinct  is  not  clear; 
the  usual  test  is  want  of  intention  again  to  take  up  resi- 
dence in  the  United  States.  But  citizens  by  birth,  provided 
they  retain  their  allegiance,  do  not  forfeit  their  citizenship 
by  prolonged  residence  under  extraterritorial  jurisdiction.^ 
On  this  ground  passports  have  been  issued  to  missionaries  in 
China  without  requiring  them  to  prove  retention  of  domi- 
cil  in  the  United  States  or  intention  to  return  to  the 
United  States.*  The  status  of  the  first  generation  of  chil- 
dren of  citizens  born  in  Turkey  or  China  is,  upon  a  gen- 
erally accepted  principle,  the  same  as  that  of  the  father,  no 
matter  what  onay  have  been  the  original  nationality  of  the 
mother;  but  Section  1993  of  the  Revised  Statutes  provides 
that  "the  rights  of  citizenship  shall  not  descend  to  children 
whose  fathers  never  resided  in  the  United  States/^  and  this 
provision  would  operate  in  many  cases  to  deny  the  rights  of 
citizenship  to  children  of  the  second  generation  under  extra- 
territorial jurisdiction  if  exception  were  not  made  in  favor  of 
those  who  remain  members  of  distinctive  American  com- 
munities. This  exception  was  declared  available  to  such 
persons  by  Secretary  of  State  Bayard  in  an  instruction  to 


'  Dipl.  Corr.  1866,  pt.  2,  p.  269;  infra,  p.  106-7. 

»  Case  of  Hajie  Seyyah,  Persia;  For.  Rel.  1893,  p.  487,  496,  505,  506,  508, 
«  Case  of  Hatchdoorian;  For.  Rel.  1887,  p.  1126,  1131. 

That   legitimacy   of   occupation    is   not   a   criterion    was   held   in   the 
cases  of  two  women  living  at  Port  Arthur;  For.  Rel.  1899,  p.  185. 
*  For.  Rel.  1892,  p.  124;  1900,  p.  390. 


EXPATRIATION 


91 


the  consul  at  Smyrna,  replying  to  a  memorial  prepared  by 
Messrs.  Blackler,  Langdon  and  Offley,  who  resided  in  Smyr- 
na and  desired  to  have  their  children  registered  at  the  con- 
sulate as  American  citizens.^  Undoubtedly  the  same  ex- 
ception would  extend  to  children  of  the  second  and  succeed- 
ing generations  in  China  and  other  countries  where  extra- 
territorality  prevails;  and  it  is  probable  that  membership  in 
a  community  of  citizens  would  be  regarded  as  meaning  sim- 
ply continued  association  with  other  Americans,  either  by 
residing  in  a  foreign  settlement  as  at  Shanghai  or,  if  living 
in  the  interior,  by  being  identified  with  distinctive  Ameri- 
can interests  as  at  a  missionary  station  or  a  business  agency. 
It  is  impossible  for  an  American  citizen  to  exempt  him- 
self from  his  national  jurisdiction  in  Turkey  or  China  ex- 
cept by  renouncing  his  nationality.-  The  only  partial  ex- 
ceptions are  in  respect  to  real  estate  in  Turkey  and  to  resi- 
dence at  a  distance  of  nine  or  more  hours  travel  from  a 
consulate  in  Turkey.  A  citizen  is  at  liberty  to  expatriate 
himself  and  only  in  that  way  can  he  forego  the  protection 
and  jurisdiction  of  the  United  States. 


Expatri- 
ation 


II— THE  RULE   OF  DOMICIL;   MARRIAGE;   INHERITANCE 

What  law  is  applicable  in  particular  cases  in  consular  The  rule 
courts  often  depends  upon  the  domicil  of  the  parties.  For  cu 
example,  questions  pertaining  to  the  validity  of  a  marriage 
or  the  settlement  of  an  estate  may  not  be  disposed  of  with- 
out first  determining  the  domicil  of  the  parties  to  the  mar- 
riage at  the  time  they  entered  into  that  relation  or  the 
domicil  of  the  deceased  at  the  time  of  his  death.  In  general 
all  matters  dependent  upon  personal  status  involve  the 
determination  of  domicil. 


>  For.  Rel.  1887,  p.  1120. 

•  Case  of  Dr.  Dondjian ;  For.  Rel.  1891,  p.  751.     Inquiry  by  the  Japa- 
ne8«  Government;  For.  Rel.  1877,  p.  354;  also  1874,  p.  643,  645. 


92 


DO'MICIL  OP  ORIGIN 


Oriental 
domlcll 
not  ac- 
quired 


Domlcil 
of    origin 
retained 


similar 
British 
rultt 


The  essential  features  of  domicil  are,  first,  residence  in  a 
particular  place,  and,  secondly,  intention  to  remain  per- 
manently in  that  place.  Many  American  citizens  residing  in 
oriental  countries  have  no  intention  of  returning  to  the 
United  States,  and  it  might  naturally  be  asked  whether  they 
had  acquired  an  oriental  domicil.  But  the  law  of  domicil  is 
inapplicable  to  the  case.  It  is  of  the  very  essence  of 
treaties  of  extraterritoriality,  and  of  the  laws  to  give  them 
effect,  to  extend  to  the  alien  the  benefits  and  to  subject  him 
to  the  obligations  of  the  law  of  his  own  country.^  An  Ameri- 
can citizen  may,  for  instance,  reside  in  Shanghai  all  his  life 
and  yet  be  free  from  the  operation  of  the  law  of  China.  In 
short,  though  residing  permanently  in  Shanghai,  he  retains 
not  only  his  American  nationality  but  also  his  American 
domicil,  which  is  conceived  to  continue  in  the  state  or  terri- 
tory in  which  he  had  his  home.  Thus  the  distribution  of 
property  of  a  citizen  of  California  dying  intestate  in  China 
would  presumably  be  controlled  by  the  law  of  California  in 
all  respects  in  which  the  statutes  and  regulations  had  not 
otherwise  provided,  although  the  question  does  not  appear 
to  have  been  adjudicated  by  the  courts  in  the  United  States. 

Under  British  foreign  jurisdiction  a  rule  was  at  one  time 
in  force  that  a  person  in  the  service  of  the  British  East 
India  Company  acquired  an  ^Anglo-Indian'  domicil,  which 
for  testamentary  purposes  was  equivalent  to  English 
domicil.  But  the  inconvenience  of  admitting  such  a  theory 
caused  it  in  time  to  be  disregarded,  and  it  has  been  held  in 
recent  years  in  a  series  of  cases  that  a  British  subject  can- 
not acquire  a  domicil  in  Turkey  or  in  China,  and  that  he 
retains  his  British  domicil.^ 


1  Dicey,  Conflict  of  Laws,  p.  29,  723-5. 

2  Maltass  v.  Maltass,  1  Rob.  Eccl.  Rep.  67;  Re  Betiiell,  L.  R.  38  C.  D. 
220;  Re  Tootal's  Trusts,  lu.  R.  23  C.  D.  532;  Abd-uI-Messiii  z>.  Farra,  L. 
R.  13  A.  C.  431.  See  also  Piggott,  Exterritoriality,  p.  139-55;  Hall, 
Foreign  Juri.?diction,  p.  180-6. 


MARRIAGE 


93 


The  Eevised  Statutes,  Section  4082,  provide  that : 

Marriages  in  presence  of  any  consular  officer  of  the  United 
States  in  a  foreign  country,  between  persons  who  would  ba 
authorized  to  marry  if  residing  in  the  District  of  Columbia, 
shall  be  valid  to  all  intents  and  purposes,  and  shall  have  the 
same  effect  as  if  solemnized  within  the  United  States.  And  such 
consular  officers  shall,  in  all  cases,  give  to  the  parties  married 
before  them  a  certificate  of  such  miarriage,  and  shall  send  an- 
other certificate  thereof  to  the  Department  of  State,  there  to  be 
kept;  such  certificates  shall  specify  the  names  of  the  parties, 
their  ages,  places  of  birth  and  residence. 


Mar- 
riage 


It  is  thus  declared  that  the  capacity  of  parties  to  enter 
into  the  contract  of  marriage  is  to  be  determined  according 
to  the  law  prevailing  in  the  District  of  Columbia.  But  it  is 
not  permitted  to  diplomatic  or  consular  officers,  without 
special  authority  from  the  Department  of  State,  to  issue  any 
instrument  in  the  nature  of  a  license  to  marry  or  a  cer- 
tificate of  freedom  from  matrimonial  disabilities,  or  to  make 
any  official  statement  as  to  the  law  of  the  United  States  or 
any  part  thereof  relating  to  the  solemnization  of  marriage.^ 

The  effect  of  the  presence  of  a  consular  officer  at  a  mar- 
riage ceremony  is  merely  to  enable  and  oblige  him  to  certify 
to  the  marriage  as  an  official  witness.  His  presence  in 
nowise  gives  'legality'  to  the  marriage,  and  his  duties  are 
confined  to  the  certification  of  it. 

The  statutes  confer  no  authority  upon  diplomatic  officers 
either  officially  to  witness  or  to  certify  to  marriages.  As 
there  has  been  no  American  consulate  at  Peking,  requests 
have  occasionally  been  made  to  the  minister  to  attend  mar- 
riage ceremonies  for  the  purpose  of  giving  them  'legality'; 
one  of  the  earlier  ministers  is  said  to  have  complied  with 
such  requests,  but  in  1890  the  Secretary  of  State  approved 
the  action  of  a  minister  in  declining  to  do  so." 

Marriages  solemnized  without  the  presence  of  a  consular 
officer  are  not  invalidated  by  the  statute  quoted  above,  al- 


Liicense 

to 

marry 


Con- 
sular 
certi- 
fication 
of    mar- 
riage 


Modes   of 
solemni- 
zation 


>  Circular  of  February  8,  1887;  For.  Rel.  1887,  p.  1133;  Consular  Regu- 
lations of  1896,  Par.  422. 
»For.   Rel.  1890,   p.  197,  209. 


94 


INTERMARRIAGE  WITH  FOREIGNERS 


Inter- 
marriage 
with 
forelsrn- 
ers 


though  as  a  measure  of  precaution  the  observance  of  the 
statutory  method  is  considered  desirable.  The  general  rule 
that  the  mode  of  solemnization  is  to  be  that  prescribed  by 
the  law  of  the  place  of  solemnization  is,  of  course,  not  ap- 
plicable in  countries  where,  as  in  Turkey  and  China,  Ameri- 
cans are  exempt  from  the  local  law  in  their  personal  rela- 
tions. In  1878,  when  the  United  States  had  a  treaty  of  ex- 
traterritoriality with  Persia  but  was  unrepresented  by  either 
a  diplomatic  or  a  consular  officer  in  that  country,  an  opinion 
was  requested  of  the  American  minister  at  Constantinople, 
Horace  Maynard,  how  a  marriage  between  Americans  in 
Persia  might  be  solemnized  so  as  to  make  it  legally  valid.  It 
was  Mr.  Maynard's  opinion  that  in  view  of  the  circumstances, 
a  ceremony  in  which  the  parties  declared  their  mutual  eon- 
sent  and  to  which  a  clergyman  or  local  magistrate  gave  cer- 
tification, which  should  be  recorded  in  the  consulate  at  Con- 
stantinople, would  be  held  to  be  valid..* 

The  proposed  intermarriage  of  a  British  subject  with  an 
American  woman,  both  the  parties  residing  in  China,  was 
the  occasion  of  a  correspondence  in  1888-9  as  to  the 
validity  and  certification  of  mixed  marriages  in  that  country. 
A  plan  was  devised  to  have  two  ceremonies,  the  first  accord- 
ing to  American  law  and  the  second  according  to  British 
law;  and  the  American  minister,  Mr.  Charles  Denby,  agreed 
to  communicate  to  his  British  colleague  his  'recognition' 
of  the  validity  of  the  marriage  before  the  American  consular 
officer.  The  Secretary  of  State,  Mr.  Bayard,  expressed  the 
opinion  that,  if  Mr.  Denby  "should  recognize  as  valid  con- 
sensual marriages  in  China,  such  marriages  being  exclusive 
sexual  unions  for  life,''  he  would  be  "acting  in  conformity 
with  the  great  body  of  judicial  authority  in  the  United 
States."  Mr.  Bayard  separated  the  question  of  the  form  of 
the  ceremony  from  that  of  the  capacity  to  marry,  stating 
that  the  prevailing  view  in  regard  to  the  latter  question  was 
that  the  law  of  domicil  controlled  and  that  every  precaution 
should  be  taken  by  an  American  to  prevent  impeachment  of 


>  For.   Rel.   1879,   p.  977-8;   also  supra,   p.  79,    note   7. 


INHERITANCE  OF  PERSONALTY  95 

the  marriage  before  the  courts  of  the  country  in  which  the 
other  party  to  the  marriage  would  be  held  to  have  domicil. 

In  a  divorce  case  before  the  American  consular  court  at  Divorc«. 
Shanghai  in  1903,  it  was  argued  by  counsel,  and  the  argu- 
ment appears  to  have  been  accepted  by  the  court,  that  the 
law  under  which  the  rights  of  the  parties  should  be  deter- 
mined, their  marriage  having  taken  place  at  Maracaibo, 
Venezuela,  was  the  law  of  the  District  of  Columbia.^  The 
question  of  domicil  in  some  state  or  territory  of  the  United 
States  seems  not  to  have  been  brought  up. 

One  of  the  particulars  in  which  the  Secretary  of  State,  in 
1870,  thought  that  the  regulations  for  consular  courts  in 
Japan  should  be  amended,  related  to  divorce;  but  his  ob- 
jections were  not  sustained  by  Congress,  which  tacitly  ap- 
proved the  regulations  in  their  entirety.'  The  principal 
difference  between  the  regulations  for  Japan  and  the  regu- 
lations for  Turkey  and  China,  in  respect  to  jurisdiction  of 
divorce,  was  that  the  regulations  for  Japan  declared  the 
grounds  upon  which  divorce  might  be  granted,  while  the 
other  regulations  were  confined  to  matters  of  procedure.' 

The  treaties  of  the  United  States  with  Turkey  and  China   inherit- 
do  not  contain  express  stipulations  regarding  the  care  of  personal 
property  of  deceased  American  citizens,  but  the  principle  of  ^^'^^^^  ^ 
extraterritoriality,    applicable    in    both    countries,    that    in 
matters  concerning  the  personal  relations  and  the  personal 
property  of  foreigners  of  the  same  nationality,  jurisdiction 
belongs  exclusively  to  their  national  authorities,  covers  the 
larger  number  of  cases.    When  the  heirs  or  successors  are  of 
different  nationalities,  not  including  natives,  jurisdiction  of 
such  matters  is,  by  another  principle  of  extraterritorality, 
left   to   be    determined   under  whatever   arrangement   the 
respective  foreign  governments  have  made.     If  there  are 
native  claimants  of  the  personal  property   of  a   deceased 


1  North  China  Herald,  vol.  Ixlx,  p.  1138,  1194,  November  26,  Decem- 
ber 3,  1902. 

^  Mr.  Fish  to  Mr.  DeLongr,  December  29.  1870,  Wharton,  Internat.  Law 
Digest,  vol.  1,  p.  807. 

•  Sen.  Misc.  Doc.  89,  p.  72,  106,  169  (vol.  1),  47th  Congr.,  Ist  Sess. 


96 


SUCCESSION  TO  REALTY  IN  TURKEY 


Succes- 
sion to 
real 

property 
In  Tur- 
key 


American,  the  jurisdiction  of  Turkey  or  China,  as  the  case 
may  be,  is  still  excluded,  although,  under  the  provisions  of 
the  treaties  that  Turkey  retains  jurisdiction  of  cases  in- 
volving Turkish  subjects,  the  Turkish  government  contends 
that  the  claims  of  Turkish  creditors  against  the  estate  of  a 
foreigner  in  Turkey  are  to  be  brought  before  Turkish 
courts.^ 

As  to  the  inheritance  of  real  property  in  Turkey  the 
opinion  has  been  expressed  by  an  eminent  authority  that 
under  the  law  of  1867,  granting  to  foreigners  the  right  to 
acquire  such  property  and  declaring  that  in  the  enjoyment 
of  this  right  they  are  assimilated  to  Ottoman  subjects  and 
are  justiciable  before  Ottoman  tribunals,  the  Ottoman  tri- 
bunals have  exclusive  jurisdiction  of  the  subject.-  It  is  said 
that  in  practice  the  Ottoman  authorities  require  a  consular 
certificate  showing  what  persons  are  lawful  heirs  of  the  de- 
ceased, but  this  formality  is  not  understood  to  prevent  the 
Ottoman  authorities  from  disposing  of  the  property  accord- 
ing to  Ottoman  law.  The  fourth  article  of  the  law  of  1867 
is  susceptible  of  being  interpreted  so  as  to  limit  the  Otto- 
man jurisdiction  to  intestate  succession,  but  the  more  ex- 
plicit language  of  the  second  article  would  no  doubt  preclude 
such  a  limitation. 

The  first  article  of  the  law  of  1867  provides  that  the  privi- 
leges granted  therein  are  not  to  be  extended  to  "subjects  of 
Ottoman  birth  who  have  changed  their  nationality,''  and 
that  such  subjects  "shall  be  governed  in  this  matter  by  a 
special  law."  The  Turkish  government  has  held  that  the 
special  law  here  referred  to  is  not  a  law  subsequently  to  be 
enacted  but  is  the  law  provided  in  Article  III  of  the  real 
estate  code  of  1858,  which  declares  that  land  once  owned  by 
a  Turkish  subject  who  has  abandoned  his  nationality  does 
not  descend  to  his  children. =*     This  provision  is  in  accord- 


>  Salem,  Du  droit  des  strangers  de  transmettre  par  succession  en 
Turquie,  Jour,  du  droit  internat.  priv6,  1898,  p.  665,  671,  in  which 
reference  is  made  to  correspondence  between  Turkey  and  the  Nether- 
lands on  this   point  in   1879;   also  ibid.,  p.   1030. 

»  Salem,  De  la  succession  immobili^re  des  strangers  en  Turquie, 
Jour,  du  droit  internat.  priv6,  1899,  p.  470,  472;  also  ibid.,  p.  47. 

•  For.  Rel.  1897,  p.  588;  see  also  1883,  p.  809,  815,  821,  833. 


RULE  OF  LEX  LOCI  97 

ance  with  the  Mohammedan  sacred  law,  which  prohibits  in- 
heritance in  Turkey  by  a  person  of  a  different  nationality, 
that  is  of  different  religion,  from  that  of  the  deceased.^  It 
is  believed,  however,  that  the  Turkish  government  does  not 
insist  upon  the  enforcement  of  the  law  of  1858  in  this  par- 
ticular. 

The  acquisition  of  real  property  in  China  does  not  place  a   succes- 
foreigner  under  Chinese  jurisdiction  with  respect  to  such    real 
property.     It  is  therefore  impossible  for  China  to  exercise   in  China 
jurisdiction  with  respect  to  succession  to  the  real  property 
left  by  a  deceased  foreigner.     It  was  held  in  Macdonald  v. 
Anderson  in  the  British  consular  court  at  Tientsin,  in  1904, 
that  the  principle  of  lex  loci  is  to  prevail  in  respect  to  real 
property  rights  of  foreigners  in  China. ^ 

It  is  not  unlikely  that  under  the  American  foreign  juris- 
diction the  same  prinicple  would  be  followed,  and  only  to  this 
extent  would  the  rights  of  heirs  and  successors  be  affected 
by  the  law  of  China. 

The  United  States  court  for  China  exercises  supervisory 
control  over  consuls  in  the  care  of  estates  of  decedents  in 
China.  Within  sixty  days  after  the  death  of  a  citizen  in 
China,  the  consul  is  to  file  with  the  clerk  of  the  court  a 
sworn  inventory  of  the  effects  and  a  schedule  under  oath 
of  the  debts.  A  consul  is  to  pay  no  claims  or  make  sale 
of  any  asset  without  written  approval  of  the  judge.  The 
judge  may  require  from  a  consul  at  any  time  reports  of 
what  the  consul  has  or  is  doing  with  respect  to  the  estate. 
He  may  also  require  a  special  bond,  and  for  failure  as  to 
the  bond  or  in  care  of  the  estate,  the  court  may  appoint  some 
other  person  to  take  charge  under  bond.  The  clerk  is  to 
keep  a  record  of  all  proceedings  with  respect  to  the  estate 
under  this  statute.^ 

1  Salem,  Du  droit  des  Strangers  de  recueillir  par  succession  en  Tur- 
quie,   Jour,  du  droit  internat.   priv6,   1899,   p.   961,   964. 

'  North  China  Herald,  February  5,  1904,  p.  247.  A  portion  of  the  judg- 
ment pronounced  by  Mr.  Justice  F.  S.  A.  Bourne  in  this  case  is 
printed  infra.   Appendix  VIII. 

See  also,  to  same  effect,  Secretary  of  State  for  Foreign  Affairs  v. 
Charlesworth  Pilling  Company  and  others,  appealed  from  a  British 
court  In  Zanzibar.    L.  T.  R.,  vol.  84,  N.  S.,  p.  212. 

=*  Act  of  June  30,  1906,   Sec.  2;   see  Appendix  III-2. 


98 


OFFENSES  NAMED  IN  THE  TREATIES 


III— PERSONS  ACCUSED    OF  CRIME 


Petty 
offenses 


Acts 
named 
In  the 
treaties 
as  Indict- 
able 


Effect    of 
local    po- 
lice re- 
gula- 
tions. 


By  far  the  greater  number  of  offenses  dealt  with  in  the 
consular  courts  are  such  lesser  disturbances  of  the  peace  as 
fall  within  the  jurisdiction  of  municipal  police  courts  in  the 
western  countries.  The  consular  courts  located  at  the  prin- 
cipal centers  of  trade  have  marshals  and  prisons  for  the 
custody  of  criminal  offenders,^  and  in  other  places  the 
services  of  native  police  and  the  use  of  local  prisons  may  be 
engaged  as  occasion  requires.  The  procedure  in  criminal 
cases,  while  intended  sufficiently  to  protect  the  rights  of  the 
accused,  is  nevertheless  simple  and  summary.^ 

In  general  no  act  is  indictable  as  a  crime  under  the  foreign 
jurisdiction  which  would  not  be  indictable  in  the  United 
States.  But  there  is  an  obvious  exception  to  this  rule  in 
that  the  treaties  with  China,  Korea  and  Siam  stipulate  with 
some  particularity  what  customs,  shipping,  and  import  and 
export  trade  regulations  shall  be  observed  and  provide  that 
infractions  of  these  regulations  may  be  penalized  by  the 
oriental  government  itself  to  the  extent  of  confiscating  the 
prohibited  goods  or  the  offending  ship  and  its  cargo.^  The 
same  class  of  rights  is  a  subject  of  stipulation  in  the  treaty 
between  Turkey  and  Germany  of  August  26,  1890,  under 
which,  by  virtue  of  most-favored-nation  clauses,  the  trade 
with  other  countries  is  also  regulated. 

It  has  been  the  policy  of  the  United  States  to  require  of 
its  citizens  to  observe  the  regulations  prescribed  by  the 
oriental  governments  for  the  security,  good  order,  health 
and  general  welfare  of  local  communities,  and  it  is  believed 


*  The   annual   Diplomatic   and   Consular   Service   Appropriation   Act 

of  June  16,  1906,  appropriated  for  interpreters  and  guards  la  Turkey 
and  Zanzibar,  $12,000;  for  marshals  of  consular  courts  in  China,  Korea 
and  Turkey,  $11,000;  for  the  keeping  and  feeding  of  prisoners  in  China, 
Korea,  Siam  and  Turkey,  19,000;  and  for  other  similar  specified  pur- 
poses, $4,150;  total,  $36,150.    Public— No.  236. 

»  The  Earl  of  Aberdeen,  in  transmitting  copies  of  the  Foreign  Juris- 
diction Act  of  1843  to  Sir  Stratford  Canning  at  Constantinople,  in- 
closed an  excellent  memorandum  for  the  use  of  consuls,  explaining  the 
summary  nature  of  their  criminal  jurisdiction;  Brit,  and  For.  State 
Papers,  vol.  32,  p.  856. 

'  As  to  the  effects  of  the  customs  regulations  of  Japan  see  For. 
Rel.  1898,  p.   432. 


rior 


LOCAL   POLICE  REGULATIONS  99 

that  such  regulations  have  been  enforced  in  consular  courts 
just  as  if  they  were  regulations  published  by  the  American 
ministers  to  those  countries.  Other  foreign  governments 
have  taken  the  ground  that  their  nationals  were  amenable 
only  to  the  laws  of  their  own  countries,  and  in  1879  some  of 
these  governments  were  indisposed  to  enforce  quarantine 
regulations  prescribed  by  Japan  for  preventing  the  bringing 
in  of  cholera  from  other  countries  in  the  Far  East.  But  the 
United  States  cooperated  with  Japan  by  securing  strict  ob- 
servance of  the  quarantine  on  the  part  of  American  ships. ^ 

A  form  of  offense  that  occasionally  occurred  in  Japan  was  Trespass- 
that  of  trespassing  beyond  the  limits  of  treaty-ports.  When  the  inte- 
the  offender  had  been  conducted  back  to  the  port  and  com- 
plaint had  been  made  to  the  consul,  the  matter  ordinarily 
ended  without  trial. ^  Although  there  still  exist  some  treaty 
restrictions  upon  travel  in  the  interior  of  China  and  Korea, 
special  permits  for  such  travel  are  often  issued. 

Other  offenses  named  in  the  treaties  with  China  and 
Korea  are :  concealment  of  native  offenders,  aiding  in  or  pro- 
curing the  forcible  emigration  of  Chinese  coolies,  insulting, 
troubling  or  wounding  the  person  or  injuring  the  property 
of  the  Chinese  or  Koreans,  or  committing  any  other  im- 
proper act  in  China  or  Korea,  or  making  improper  use  of  the 
American  flag. 

iFor.  Rel.  1879,  p.  604,  60S,  647,  657,  665,  670;  1880,  p.  679.  Sheppard,  Ex- 
traterritoriality, Toicio,  1879,  a  treatise  wliich  had  special  reference  to 
the  obligations  of  foreigners  under  the  municipal  law  of  Japan,  con- 
tains, at  p.  48,  the  following  language:  Japan  "maintains  that  the 
judicial  authority  conferred  upon  consuls  by  virtue  of  the  extra- 
territorial provisions  of  existing  treaties,  in  no  way  denies  to  her  the 
exercise  of  her  original  inherent  sovereign  power  to  prohibit  by  gen- 
eral law  the  commission  of  any  crime  by  any  and  all  persons  whomso- 
ever, within  her  territorial  limits,  not  Inconsistent  with  the  treaty 
right  of  trial  and  punishment.  As  to  penalties  and  punishments  pre- 
scribed by  Japanese  laws,  the  consular  courts  may  justly  hold  that 
they  are  not  applicable  to  their  own  nationals;  but  as  to  the  pro- 
hibitions therein  contained,  they  are  obligatory  upon  all. 
The  treaty  provisions  relate  exclusively  to  the  mode  of  trial  and 
measure  of  punishment:   to  the  remedy." 

The  United  States  had  affirmed  the  same  principle  in  regard  to  the 
Japanese  hunting  regulations;  For.  Rel.  1871,  p.  586;  1874,  p.  637,  645,  653; 
1875,   pt.  2,  p.  773,  779,  819;  1876,   p.  350,   366. 

»  For.  Rel.  1874,  p.  660,  662,  668;  1875,  pt.  2,  p.  821;  see  also,  as  to  China, 
Dipl.  Corr.  1868,  pt.  1,  p.  547. 


100  PODITICAL  OFFENSES 

Poiitjicai  The  Statutes  themselves,  it  has  been  shown/  specify  the 
excei3tional  procedure  that  shall  take  place  in  a  trial  for 
either  of  the  two  crimes  punishable  with  death,  namely,  in- 
surrection or  rebellion  against  the  local  government,  and 
murder;  but  they  do  not  indicate  what  degree  of  political 
offense  shall  be  held  to  constitute  insurrection  or  rebellion. 
It  has  been  suggested  that  a  definition  of  this  crime  and  of 
what  is  necessary  for  conviction  of  it,  may  be  inferred  from 
the  definition  of  treason,  and  from  the  provision  regarding 
trials  for  treason,  contained  in  Article  IV,  Section  3,  of  the 
Constitution  of  the  United  States,  yet  it  cannot  be  said  that 
the  rights  of  an  accused  person  under  this  section  must  of 
necessity  be  observed  in  an  extraterritorial  court  any  more 
than  the  right  of  trial  by  jury  must  be  observed  by  such  a 
court. 

In  each  of  the  few  instances  when  charges  of  having  com- 
mitted a  political  offense  have  been  brought  against  Ameri- 
can citizens,  the  matter  has  not  even  reached  the  stage  of  a 
formal  trial.  The  government  of  China  engaged  the  services 
of  a  certain  General  Burgevine,  an  American,  to  assist  in 
suppressing  the  Taiping  rebellion;  Burgevine  shifted  his 
allegiance  from  one  party  to  another  until,  upon  complaint 
of  the  Chinese  government,  the  American  authorities  in- 
formed him  that  he  would  no  longer  be  regarded  as  having 
a  right  to  American  protection  in  China. ^  Since  1890  a 
number  of  naturalized  citizens  of  Armenian  birth,  resuming 
their  residence  in  Turkej'-,  have  been  accused  of  being  agents 
of  revolutionary  societies,  but  no  open  act  against  the  Turk- 
ish government  has  been  proved,  and  the  United  States  has 
contented  itself  with  declaring  that  it  would  regard  their 
continued  residence  in  Turkey  as  equivalent  to  a  renuncia- 
tion of  their  naturalization.^  The  right  of  Turkey,  upon 
notice  to  the  consul  and  with  his  cooperation,  to  refuse  to 
admit  into  its  territory  or  to  expel  from  it  former  Turkish 

'  Supra,  p.   47-8. 

>Dipl.  Corr.  1863,  pt.  2,  p.  864;  1865,  pt.  2,  p.  452;  1866,  pt.  1,  p.  462. 

•  For.  Rel.  1894,  p.  753;  1895,  pt.  2,  p.  1295,  1300,  1304. 


NON-NEUTRAL  ACTS  101 

subjects  reasonably  suspected  of  hostile  intent  toward  the 
government,  cannot  be  doubted. 

During  the  war  between  France  and  China  in  1885,  China  Non- 
complained  that  Americans  were  being  employed  as  pilots  acts 
on  French  naval  vessels.  The  answer  of  the  United  States 
was  that  its  statutes  had  not  forbidden  citizens  to  make  pri- 
vate contracts  with  foreign  belligerents  at  their  own  risk 
and  that  such  contracts  were  not  cognizable  in  consular 
courts.^  Yet  it  is  specified  in  Section  4090  of  the  Eevised 
Statutes  that  "every  such  minister"  [that  is,  minister  to  a 
country  where  extraterritoriality  prevails]  "may  issue  all 
manner  of  writs,  to  prevent  the  citizens  of  the  United  States 
from  enlisting  in  the  military  or  naval  service  of  either  of 
the  said  countries  [that  is,  where  extraterritoriality  prevails], 
to  make  war  upon  any  foreign  power  with  whom  the  United 
States  are  at  peace,  or  in  the  service  of  one  portion  of  the 
people  against  any  other  portion  of  the  same  people ;  and  he 
may  carry  out  this  power  by  a  resort  to  such  force  belonging 
to  the  United  States  as  may  at  the  time  be  within  his  reach." 
Such  writs  were  issued  by  a  minister  to  China,  E.  M.  Mc 
Lane,  December  5,  1854,  and  were  no  doubt  regarded  as  of 
equal  standing  with  the  ordinary  regulations  enforceable  in 
consular  courts.-  It  may  be  noted  that  the  statute  does  not 
provide  that  military  service  for  a  foreign  power  at  war  with 
a  country  where  extraterritoriality  prevails  may  be  pre- 
vented, but  only  provides  for  preventing  such  service  in  be- 
half of  such  an  oriental  country  against  a  power  friendly  to 
the  United  States  or  serving  in  a  civil  war  in  an  oriental 
country.^ 

In  the  same  war  of  1885  between  France  and  China  in-  Trading 
structions  were  issued  covering  the  hypothetical  question   traband 
whether  vessels  of  American  registry  could  be  lawfully  sold 
in  China  to  the  Chinese  and  declaring  that,  where  the  ulti- 


1  For.   Rel.   1885,   p.  156,  160. 

^  Ho.  Ex.  Doc.  32,  34th  Cong.,  1st  Sess.  Twenty  years  later  this  was 
held  to  be  still  in  effect;  For.  Rel.  1874,  p.  256,  300. 

*  Consuls  may  not  publish  anything  in  the  nature  of  regulations  to 
prevent  non-neutral  acts;  For.  Rel.  1874,  p.  332. 


102 


CRIMINAL  PROCEDURE 


Pro- 
cedure In 
the     trial 
of    crimi- 
nal of- 
fenders 


The 

Buckley 
case, 
Shang- 
hai. 1864 


mate  object  of  the  transaction  was  hostile  and  consular 
authorization  was  necessary  to  validate  the  transfer,  the 
consul  would  not  be  justified  in  taking  any  part  in  it;  but 
that  he  would  not,  on  the  other  hand,  be  justified  in  taking 
positive  preventive  measures;  and  that  the  transfer,  if  made, 
would  be  at  the  owner's  risk  and  peril.^  The  American  min- 
ister at  Peking  gave  instructions  also  that  to  enter  or  clear 
a  ship  known  to  have  a  cargo  of  contraband  would  be  a  ques- 
tionable proceeding.^ 

While  no  trial  under  the  foreign  jurisdiction  for  the 
crime  of  insurrection  or  rebellion  against  an  oriental  govern- 
ment has  occurred,  there  have  been  trials  for  murder  in 
China,  Japan  and  Egypt,  and  the  rights  of  the  accused  in 
such  trials  have  been  well  determined.  In  the  trial  of  John 
Buckley  at  Shanghai  in  1864,^  objections  were  made  by  the 
prisoner's  counsel  that  there  had  been  no  indictment  pre- 
sented by  a  grand  jury,  that  the  accused  had  not  been 
tried  by  a  jury,  and  that  the  four  associates  sitting  with  the 
consular  judge  had  been  allowed  to  separate  and  to  go  about 
their  ordinary  business  after  the  commencement  of  the  trial ; 
and  it  was  further  represented  that  since  the  decision  of  the 
consular  court  in  a  capital  case  must  be  referred  to  the  min- 
ister at  Peking  for  his  sanction,  it  would  seem  to  follow  that 
the  minister  would  have  power  to  set  aside  a  judgment  mani- 
festly erroneous;  and  the  petitioner  prayed  that  if  the  min- 
ister declined  to  reverse  the  decision  of  the  consular  court  in 
the  case,  then  the  execution  be  stayed  and  the  case  be  sub- 
mitted to  the  President.  The  minister  at  Peking  approved 
the  decision  of  the  consular  court,  and  a  strong  effort  was 
made,  but  unsuccessfully,  to  bring  the  matter  before  the 
President.  The  objection  to  the  separation  of  the  associates 
on  the  trial  was  held  by  Consul-General  Seward  not  to 
be  well  grounded,  because  associates,  he  said,  were  merely 
advisers  and  not  judges,  and  the  Statutes  contained  no  pro- 


•»For.   Rel.  1885,   p.  170. 
»For.   Rel.   1885.   p.  168. 

•  Dlpl.  Corr.  1864-5,  pt.  3,  p.  400,  440,  474,  478.    A  statement  of  the  case 
is  also  given  in  the  case  of  In  re    Stupp,  11  Blatchford,  124,  148. 


SPECIAL  INSTRUCTIONS  AS  TO  TRIAL  103 

hibition  against  the  separation  of  associates.  The  principal 
objection,  that  proceeding  without  a  jury  on  the  trial  was 
unconstitutional,  was  much  more  fully  discussed  and  the 
objection  overruled  in  the  case  of  In  re  Ross  before  the 
Supreme  Court  in  1890.^ 

When  S.  P.  Mirzan  was  tried  for  murder  at  Alexandria,   The 
Egypt,^  the  question  arose  whether  the  list  of  names  of  citi-   case, 

A-Igx- 

zens,  who  might  be  summoned  as  associates  on  the  trial,   andria, 

1879 

could  be  supplemented  immediately  before  the  selection  of 
associates  for  a  particular  case  was  to  be  made;  the  minister 
at  Constantinople  held  that  the  list  could  be  so  supple- 
mented, and  that  the  circumstance  that  the  list  was  made 
three  years  earlier  and  contained  only  nine  names,  justified 
its  being  done.  The  Mirzan  trial  took  place  before  Vice 
Consul-General  Comanos  in  the  absence  of  the  consul-gen- 
eral. Mr.  Comanos  desired  full  instructions  as  to  the 
procedure  proper  to  be  followed,  and  in  the  instructions  sent 
to  him  by  the  Secretary  of  State,  W.  M.  Evarts,  he  was  di- 
rected to  allow  Mirzan  to  have  counsel  for  his  defense  and, 
if  necessary,  compulsory  process  to  secure  the  attendance  of 
witnesses;  in  case  of  conviction,  a  copy  of  the  record  of  the 
proceedings,  including  the  evidence,  additional  to  the  copy 
required  to  be  sent  to  the  minister,  was  to  be  sent  to  the 
Department  of  State,  and  execution  was  to  be  stayed  until 
the  record  had  been  examined  in  the  Department  and  in- 
structions thereupon  received. 

The  arrest  of  a  foreigner,  a  criminal  offender  in  an  ori-  Arrests 
ental  country,  is  made  either  by  the  consular  marshal  or  by 
officers  of  the  local  government,  but,  if  by  the  latter,  the 
prisoner  may  not  be  detained  in  a  prison  under  charge  of  the 
local  government  and  must  immediately  be  handed  over  to 
his  consul.  Upon  request  of  the  consul,  officers  of  the  local 
government  are  required  to  render  assistance  at  any  stage 
of  the  proceedings  of  the  court  or  in  the  execution  of  the 
judgment.  Asylum  cannot  be  given  to  a  native  offender  in 
the  dwelling  of  an  American,  in  his  place  of  business,  in  an 

1  Supra,  p.  66. 

'For.  Rel.  1879,  p.  987,  1010,  1012. 


104 


AMERICAN  EXTRADITION  POLICY 


Transfer 
of 

offenders 
In    China 


Consuls 
have    no 
power 
to   ex- 
tradite 


Ameri- 
can ex- 
tradition 
treaties 
with  Ja-. 
pan    and 
Turkey 


American  ship  or  in  an  American  consulate;  but  with  ex- 
ception, in  Turkey,  of  buildings  occupied  by  Americans  and 
situated  at  a  distance  of  nine  or  more  hours  from  a  con- 
sulate, none  of  these  places  may  be  entered  by  officers  of  the 
local  government  for  search  or  apprehension  of  criminal 
offenders  without  the  assent  of  the  consul  and  in  the 
presence,  if  he  deems  necessary,  of  a  consular  officer;^  and 
no  doubt  natives  are  subject,  in  practice,  to  similar  re- 
strictions against  giving  refuge  to  American  offenders. 

In  1897  a  question  arose  in  China  whether  an  American 
charged  with  the  commission  of  crime  in  one  consular  dis- 
trict and  fleeing  to  another  might  be  arrested  in  the  second 
district  and  returned  for  trial  in  the  consular  court  from 
whose  jurisdiction  he  had  fled.  To  remove  any  doubt  in 
the  matter  a  regulation  declaring  the  legality  and  prescrib- 
ing the  method  for  such  a  transfer  was  published.- 

It  is  well  established  that  American  ministers  and  consuls 
liave  no  authority  under  extradition  treaties  to  deliver  up 
fugitives  from  justice.^  Where  such  a  treaty  refers  to  the 
commission  of  a  crime  within  the  'jurisdiction'  of  either 
contracting  party,  the  word  jurisdiction  is  held  not  to  in- 
clude the  extraterritorial  jurisdiction,  but  only  the  terri- 
torial.^ Consequently,  a  British  subject  charged  with  com- 
mitting embezzlement  in  Japan  and  fleeing  to  California 
was  not  extradited  from  this  country,  because  the  treaty 
with  Great  Britain  was  regarded  as  covering  only  offenses 
committed  in  the  territory  of  either  the  United  States  or 
Great  Britain.'^ 

The  United  States  has  no  treaty  of  extradition  with 
China.  Its  extradition  treaty  with  Japan  was  made  in  1886, 
ai-d  with  Turkey  in  1874.  In  making  these  treaties  the 
policy  of  the  United  States  diverged  from  that  of  Great 


'  Infra,  p.  131-3. 

'  Sen.  Ex.  Doc.  32.  p.  1-3,  55th  Cong.,  2d  Sess.;  see  also  For.  Rel.  1897, 
p.  80.  This  regulation  is  printed  infra,  Appendix  IV-3.  Cf.  a  Chinese 
proclamation  on  rendition.   For.   Rel.  1888,   pt.   1,   p.  258. 

•  For.  Rel.  1892,  p.  69,  74;  For.  Rel.  1897,  p.  80;  20  Opin.  Atty-Gen.  391; 
Moore  on  Extradition,  Sec.  464,  China;  Sec.  515,  Turkey. 

*  Moore  on  Extradition,  Sec.  89,  109. 
»  For.  Rel.  1875,   pt.  2,  p.  817,  821. 


DEPORTATION  105 

Britain,  as  we  shall  see,  and  admitted  no  right  on  its  own 
part  in  virtue  of  its  extraterritorial  jurisdiction  to  appre- 
hend fugitive  offenders  in  Japan  or  Turkey  and  remove  them 
to  its  own  territory  for  trial.  It  is  said  that  the  Turkish 
government  denies  that  the  extradition  treaty  of  1874  is  in 
force.^ 

The  arrangements  for  extradition  between  Great  Britain 
for  its  colony  of  Hongkong,  and  China,  with  respect  es- 
pecially to  the  region  of  Canton,  are  very  explicit.  Great 
Britain  has  extradition  treaties  with  other  oriental  states, 
but  not  with  Turkey;  for  purposes  of  extradition  from  Turk- 
ish dominions  portions  of  the  Fugitive  Offenders  Act  of  1881 
are  adapted  to  those  dominions  as  if  they  were  British  pos- 
sessions.- 

Besides  the  penalties  of  fine,  imprisonment,  and  death, 
which,  according  to  the  statutes,  may  be  imposed  upon 
Americans  convicted  of  crime  in  consular  courts,  there  is 
what  may  be  regarded  as  a  form  of  penalty,  namely,  deporta- 
tion or  exclusion  from  the  oriental  country,  but  no  person 
has  been  or  can  be  sentenced  to  deportation  or  exclusion  in 
an  American  consular  court,  and  these  forms  of  punishment 
appear  to  have  been  inflicted  in  only  two  countries,  in  Japan, 
under  the  express  provisions  of  the  treaty  of  1858,  and  in 
Turkey,  by  the  native  authorities  with  the  acquiescence  of 
the  American  government. 

The  treaty  of  1858  with  Japan  provided  that  Americans  Depor- 
convicted  of  felony  or  twice  convicted  of  misdemeanor  from 
should  lose  their  right  of  permanent  residence  in  Japan  and 
that  the  Japanese  authorities  might  require  them  to  leave 
the  country  and  not  to  return.  The  deportation  of  such  an 
offender  devolved  exclusively  upon  the  Japanese  authorities. 
No  consular  court  could  sentence  him  to  deportation  or  take 
forcible  measures  to  expel  him,  although,  so  long  as  he  re- 
mained in  Japanese  territory,  he  continued  to  be  subject  to 
the  jurisdiction  of  the  United  States  conssular  courts.  The 
only  right  he  forfeited  was  that  of  staying  within  or  re- 

•  Moore  on  Extradition,  vol.  1,  p.  102,  footnote  1,  and  p.  815. 
'  Hertslet,   Commercial  Treaties,   vol.   xv,   p.   432. 


106  EXCLUSION 

entering  Japanese  territory.  Any  act  of  violence  he  might 
com'mit  while  the  Japanese  authorities  were  enforcing  his 
deportation  would  be  under  the  sole  jurisdiction  of  his  con- 
sul. Of  course  no  person  could  be  deported  whose  sentence 
in  a  consular  court  had  not  been  served.^ 
Expui-  There  is  obviously  much  difference  between  the  right  of 

exciu-         deportation  as  it  was  exercised  by  Japan  under  the  treaty 
from  of  1858  and  the  right  of  exclusion  or  expulsion  exercised  by 

Turkey  Turkey  and  admitted  by  the  United  States  with  certain 
important  restrictions.  The  government  of  Turkey  has 
claimed  the  right  to  exclude  or  expel  undesirable  or  dan- 
gerous classes  of  aliens  and  has  regarded  as  undesirable  or 
dangerous  certain  naturalized  United  States  citizens  for- 
merly Turkish  subjects.  In  fact  Turkey  has  claimed  the 
right  to  refuse  the  privileges  of  residence  to  all  of  its  former 
subjects  naturalized  abroad  without  permission  since  1869. 
This  general  claim  is  apparently  in  direct  opposition  to  the 
privileges  of  residence,  trade  and  travel  conceded  in  the  capi- 
tulations and  treaties  to  foreigners  of  various  nationalities 
without  distinction  as  to  their  former  allegiance  to  Turkey. 
In  practice,  however,  the  European  governments  either  have 
declined  to  naturalize  Turkish  subjects  except  when  they 
have  shown  permits  to  be  so  naturalized  or  have  refused  to 
protect  such  naturalized  subjects  returning  to  Turkey.  The 
United  States,  while  affirming  the  inherent  right  of  indi- 
viduals to  expatriate  themselves,  admitted  that  there  was 
some  foundation  for  the  complaint  of  Turkey  that  Ar- 
menians had  been  found  obtaining  American  citizenship  in 
bad  faith  with  the  intention  of  returning  to  Turkey  to  cause 
sedition,  and  therefore,  when  the  Turkish  government  an- 
nounced its  policy  of  expelling  such  persons  naturalized 
abroad  since  1869,  the  United  States,  having  no  naturaliza- 
tion treaty  with  Turkey  and  recognizing  the  justice  of  this 
policy,  instructed  its  minister  at  Constantinople  to  secure 
only  their  protection  from  unnecessary  harshness  of  treat- 

>  For.   Rel.  1878,  p.  518;  1879,  p.  697;  1894,  p.  376. 


SERVING  PENALTIES 


107 


ment.^  But  the  United  States  did  not  concede  that  such 
persons  might  be  arrested  or  detained  for  any  other  pur- 
pose than  that  of  immediate  exclusion  or  expulsion.- 

On  the  other  hand  native  citizens  of  the  United  States 
and  naturalized  citizens  not  of  Turkish  origin  may  not  be 
expelled  by  the  Turkish  government  for  the  purpose  of 
precluding  the  United  States  from  exercising  its  treaty 
rights  of  jurisdiction  over  crimes  which  they  may  be 
charged  with  committing  on  Turkish  soil.^ 

Under  British  foreign  jurisdiction  there  are  large  powers 
of  deportation  of  British  subjects  from  oriental  countries  to 
British  possessions  and  deportation  is  admissible  either  for 
administrative  reasons,  that  is,  because  the  presence  of  the 
individual  is  injurious  to  the  peace  and  welfare  of  the  com- 
munity, or  with  a  view  to  his  trial  or  his  punishment.  No 
such  powers  exist  in  the  American  system. 

The  penalties  imposed  by  a  consular  court  may  be  exe- 
cuted and  the  term  of  imprisonment  served  anywhere  with- 
in the  territory  of  the  country  in  which  the  crime  and  the 
conviction  for  it  occurred,  according  to  the  discretion  of  the 
minister.*  Thus  a  criminal  oiTender  convicted  in  any  con- 
sular district  of  China  could  be  made  to  serve  his  penalty 
anyw^here  else  in  China,  and  a  prisoner  could  be  sent  from 
Egypt  to  Smyrna  for  punishment.  Under  the  British  sys- 
tem of  foreign  jurisdiction  deportation  for  the  purpose  of 
punishment  is  freely  allowed. 

The  only  provision  for  the  exercise  of  pardon  toward  per- 
sons convicted  in  A-merican  consular  courts  appears  to  be 
that  the  minister  may  postpone  execution  of  a  death  penalty 
and  submit  the  ease  to  the  President  for  pardon.^  In  the 
cases  of  Dinkelle,  Mirzan  and  Eoss,  the  penalty  of  death  was 
commuted  to  imprisonment  for  life,  the  condition  of  the 


Depor- 
tation 
under  the 
British 
system 


Place  of 

serving 

penalty 


Par- 
dons 


^  President  Cleveland's  annual  message,  December  4,  1893;  For. 
Rel.    1893,    p.    X. 

»Por.  Rel.  1894,  p.  755. 

•For.   Rel.   1894,   p.  713. 

*20  Opin.  Atty-Gen.  391;  see  also  14  Opin.  Atty-Gen.  522  and  19  Opin. 
Atty-Gen.   377. 

»  Rev.  Stat.,  Sec.  4103. 


108 


IMPORTANT  RIGHTS  OF  M'r&SIONARIBS 


Friend- 
ly settle- 
ment 
out  of 
court 


pardon  being  that  the  convicts  should  be  confined  in  prison 
in  the  United  States,  which  was  done. 

The  offenders  in  minor  crimes  may  make  pecuniary  or 
other  settlement  with  the  persons  they  have  injured,  and,  if 
made  with  the  approval  of  the  minister  or  consul,  such  a 
settlement  is  binding,^ 


impor- 
tance   of 
rlgrhts  of 
mission- 
aries 


American 
policy, 
lion-re- 
Usious 


IV-MISSIONARIES 

Upon  no  other  subject  is  the  printed  diplomatic  cor- 
respondence of  the  United  States  so  voluminous  as  upon 
that  of  the  protection  of  missionaries  in  oriental  countries. 
This  results  only  in  small  part  from  native  antagonism  to  a 
new  religion.  The  main  reasons  are  that,  except  in  the 
principal  seaports,  the  American  missionaries  have  far  out- 
numbered all  other  classes  of  Americans  combined;  that 
nearly  all  the  missionaries  have  resided  and  travelled  in  the 
interior  and  penetrated  into  parts  of  the  country  where 
foreigners  have  very  seldom  or  never  been  seen;  that  the 
relations  of  the  missionaries  with  the  native  inhabitants 
have  been  much  closer  and  more  general  than  those  of  the 
mercantile  classes;  that  special  privileges  not  stipulated  in 
the  treaties  have  been  allowed  to  missionaries  above  those 
granted  to  foreigners  in  other  occupations;  that  local  offi- 
cials have  often  been  less  generously  disposed  toward  the 
missionaries  than  the  central  authorities  have  been;  and 
that,  whereas  some  missionaries  have  been  too  little  guided 
and  restrained  by  the  church  organization  to  which  they  be- 
longed, others  have,  under  highly  organized  ecclesiastical 
control,  assumed  powers  in  some  instances  which  interfered 
with  the  prerogatives  of  the  local  government. 

It  has  been  the  uniform  policy  of  the  United  States  to  se- 
cure equal  privileges  and  protection  for  all  its  citizens 
abroad,  irrespective  of  class  or  creed;  nevertheless,  in  dis- 


>Rev.  Stat..   Sec.  4099. 


AMERICAN  POLICY,    NON-RELIGIOUS  109 

cussing  the  situation  of  missionaries,  as  in  Turkey  and 
China,  it  is  well  to  remember  that  many  of  the  privi- 
leges which  they  enjoy,  under  treaty  and  usage,  are 
the  emanation  of  the  special  relations  that  have  ex- 
isted between  some  of  the  European  governments  and 
certain  ecclesiastical  organizations.  France  is  the  chief  Ecciesi- 
protector  of  Roman  Catholics  in  both  Turkey  and  China,  relations 
Russia  protects  Greek  Catholics.     Even  Great  Britain  and  pean  gov- 

^  ernments 

Germany  are  traditionally  obligated  to  defend  the  great 
faiths  which  are  so  closely  connected  with  their  national 
history.  All  these  European  states  protect  their  own  sub- 
jects or  citizens  in  the  Orient,  whatever  may  be  their  re- 
ligious belief;  but,  when  the  oriental  governments  have 
granted  special  privileges  to  foreigners  engaged  in  propa- 
gating religion,  as  both  Turkey  and  China  have  often  done, 
it  has  been  necessary  to  take  into  account  the  intimacy  and 
cooperation  between  the  ecclesiastical  and  political  agencies 
of  some  of  the  European  governments.  In  the  treaties  them- 
selves no  sectarian  preferences  are  named,  but  in  Turkey 
the  entire  law  of  persons  is  built  upon  the  adhesion  of  in- 
dividuals to  one  or  another  religious  belief,  and  in  China, 
upon  one  or  two  occasions  at  least,  privileges  have  been 
extended  first  to  one  religious  organization  and  only 
later  or  not  at  all,  to  others.  China  is  a  secular  state, 
liberally  tolerant  of  all  religions.  Turkey  is  a  state  founded 
on  Mohammedanism,  with  the  Sultan  as  the  successor  of  the 
Prophet  and  head  of  the  Mohammedan  world;  yet  Turkey 
has  for  several  centuries  been  tolerant  of  other  religions  and 
was  conspicuously  so  at  the  period  when  the  struggles  for 
religious  liberty  in  western  Europe  were  most  bitter  and 
bloody.  In  the  nineteenth  century  the  jealousies  of  various 
religious  sects  in  Turkey,  their  interference  in  purely  politi- 
cal affairs,  and  the  weakened  financial  condition  of  the 
country  obscured  the  actually  extensive  religious  freedom 
granted  by  the  Ottoman  government.  Under  these  circum- 
stances, the  United  States,  having  no  obligation  to  secure 
privileges  and  protection  for  one  form  of  religion  above 
another,  and  treating  with  the  oriental  states  in  this  regard 


110 


RELIGIOUS  TOLERATION  IN  TURKEY 


Relig- 
ious tol- 
eration In 
Turkey 
under 
the 

treaty  of 
Berlin, 
Article 
I.XXII 


with  only  the  plain  object  of  securing  religious  freedom, 
may  be  said  to  have  had  a  really  distinctive  policy:  that  of 
protecting  American  missionaries  to  the  same  degree  as 
other  American  citizens.  ^ 

The  broad  basis  upon  which  rest  the  principal  religious 
rights  enjoyed  in  Turkey  at  the  present  day  is  the  treaty  of 
Berlin,  July  13,  1878.    Article  LXXII  reads  as  follows: 

The  Sublime  Porte  having  expressed  the  intention  to  maintain 
the  principle  of  religious  liberty  and  give  it  the  widest  scope,  the 
contracting  parties  take  notice  of  this  spontaneous  declaration. 

In  no  part  of  the  Ottoman  Empire  shall  difference  of  religion, 
be  alleged  against  any  person  as  a  ground  for  exclusion  or  in- 
capacity as  regards  the  discharge  of  civil  and  political  rights, 
admission  to  the  public  employments,  functions  and  honors,  or 
the  exercise  of  the  various  professions  and  industries. 

All  persons  shall  be  admitted,  without  distinction  of  religion, 
to  give  evidence  before  the  tribunals. 

The  freedom  and  outward  exercise  of  all  forms  of  worship  are 
assured  to  all,  and  no  hindrance  shall  be  offered  either  to  the 
hierarchical  organizations  of  the  various  communions  or  to  their 
relations  with  their  spiritual  chiefs. 

Ecclesiastics,  pilgrims,  and  monks  of  all  nationalities  traveling 
in  Turkey  in  Europe,  or  in  Turkey  in  Asia,  shall  enjoy  the  same 
rights,  advantages,  and  privileges. 

The  right  of  official  protection  by  the  diplomatic  and  consular 
agents  of  the  powers  in  Turkey  is  recognized  both  as  regards 
the  above-mentioned  persons  and  their  religions,  charitable  and 
other  establishments  in  the  holy  places  and  elsewhere.^ 


Reguia-  The  more  specific  statements  of  the  rights  which  mission- 

tions    dls-  ^  1  c  1  •   1 

allowed      aries  have  invoked  are  contained  in  the  laws  of  the  Turkish 


'  A  general  discussion  of  the  rights  of  American  missionaries  in  Tur- 
key was  made  by  Mr.  Bayard,  For.  Rel.  1887,  p.  1094;  by  Mr.  Blaine, 
For.  Rel.  1891,  p.  765;  by  Mr.  Foster,  For.  Rel.  1892,  p.  609;  by  Mr. 
Olney,  For.  Rel.  1895,  pt.  2,  p.  1256,  1461. 

For  early  instances  of  toleration  see  Mr.  Oscar  Straus's  Roger  Wil- 
liams, The  Pioneer  of  Religious  Liberty,  New  York,  1894,  p.  132-3,  201-2. 

An  excellent  statement  of  the  rights  of  missionaries  in  China  was 
made  by  Rev.  Henry  Boldget,  for  many  years  a  missionary  there; 
For.  Rel.  1885,  p.  163.  A  general  discussion  of  the  question  was  made 
by  Mr.  F.  F.  Low,  For.  Rel.  1871,  p.  97;  by  Mr.  J.  C.  B.  Davis,  For. 
Rel.  1871,  p.  153;  by  Mr.  G.  F.  Seward,  For.  Rel.  1876,  p.  46;  by  Mr. 
Chester  Holcombe,  For.  Rel.  1882,  p.  137;  by  Mr.  Charles  Denby,  For. 
Rel.  1888,  pt.  1,  p.  270;  18%,  pt.  1,  p.  196. 

*  Translation  from  the  original  French  given  in  For.  Rel.  1892,  p.  610^ 


USE  OF  MISSIONARY  RESIDENGES 


111 


Empire.  Any  such  law  not  consonant  with  the  privileges 
established  by  treaty  and  by  usage,  it  has  been  the  uniform 
practice  of  the  foreign  governments  through  their  ministers 
at  Constantinople  to  disallow  so  far  as  affecting  the  privi- 
leges of  their  own  subjects  or  citizens.  The  difficulties  that 
have  arisen  have  been  mostly  due  to  a  misunderstanding  of 
the  precise  requirements  of  the  law  or  irregularity  in  the 
administration  of  it  in  localities  distant  from  the  capital. 

Many  missionary  stations  are  situated  far  from  Constanti- 
nople. The  right  to  reside  anywhere  in  the  empire  ^  and 
freely  to  travel  from  place  to  place  ^  is  undeniable,  and  the 
exercise  of  these  rights  is  in  practice  limited  only  by  the 
prudence  of  keeping  within  localities  where  security  and 
protection  are  readily  obtainable. 

In  1891  the  Turkish  government  complained  that  the 
dwelling  houses  of  missionaries  were  being  used  for  public 
worship  and  for  instruction,  but  the  language  of  the  com- 
plaint was  very  general  and  no  criterion  was  suggested  by 
which  the  public  and  the  private  use  of  such  buildings  could 
be  distinguished.  The  United  States,  while  declining  to 
acquiesce  in  any  proposition  under  which  Turkish  author- 
ities might  infringe  upon  the  domiciliary  rights  of  American 
citizens,  expressed  the  desire  that  missionaries  should  keep 
strictly  within  the  rights  of  alien  domicil  by  refraining  from 
inviting  the  attendance  at  their  houses  of  natives  in  greater 
numbers  and  more  frequently  than  the  commonly  under- 
stood bounds  of  private  hospitality  permitted.^ 

In  a  case  where  a  missionary,  who  owned  a  piece  of  real 
property,  desired  the  Turkish  authorities  to  issue  a  building 
permit  for  the  erection  of  a  dwelling  house,  and  the  permit 
was  temporarily  refused  on  the  ground  that  the  missionary 
would  not  bind  himself  not  to  use  the  house  for  school 
purposes,  the  Department  of  State  held  that  the  require- 
ment that  the  special  uses  of  a  building  other  than  an  or- 


Rights  of 
residence 
in    inte- 
rior 


Use  of 
dwelUns 
houses  as 
church- 
es and 
schools 


'  For.  Rel.  1887,  p.  1094;  1892,  p.  609;  see  also  For.  Rel.  1883,  p.  871. 

'  For.   Rel.  1898,   p.   1095. 

•For.  Rel.  1891,  p.  755,  757,  765;  1892,  p.  527,  530,  534. 


112 


DOMICILIARY  RIGHTS 


Domi- 
ciliary 
rlghta 


Turkish 
school 
regula- 
tions 


dinary  habitation  should  be  defined  with  reasonable  pre- 
cision, could  not  be  allowed  to  restrain  foreigners  from  the 
enjoyment  of  all  im'munities  of  domicil.^ 

The  acquisition  by  missionaries  of  certain  real  property 
through  a  native  agent  and  in  his  name,  with  the  object  of 
avoiding  a  higher  purchase  price,  elicited  the  suggestion  of 
the  American  authorities  in  1894  that  the  rights  of  citizens 
could  probably  be  better  asserted  and  more  practically 
defended  if  the  land  were  recorded  in  the  name  of  the 
American  owners.  The  difficulties  in  this  case  arose  only 
when  building  permits  were  applied  f  or.^ 

During  the  absence  of  a  missionary  from  his  household 
and  school  premises  at  Tarsus  in  1895  the  premises  were 
entered  by  a  group  of  armed  men,  not  soldiers,  who  severely 
attacked  the  servants  left  in  charge.  Arrests  were  promptly 
made,  but,  after  a  farcical  trial,  the  local  judge  released  the 
prisoners.  To  support  the  remonstrances  of  the  American 
representatives  a  naval  vessel,  the  Marhlehead,  was  sent  to 
Mersine,  a  neighboring  port.  The  Turkish  government  then 
dismissed  the  judge  at  Tarsus  and  convicted  eight  of  the 
accused  persons.^  "When  the  central  Ottoman  authorities 
were  apprised  of  the  entrance  of  police  officers  into  the 
house  of  an  American  missionary  at  Marash  in  1895  under 
the  direction  of  the  acting  governor  and  without  noti- 
fication to  a  consul  or  for  any  of  the  causes  named  in  the  real 
estate  protocol  of  1874,  a  prompt  reprimand  was  given  to 
the  officials  responsible  for  the  outrage.  This  invasion  of 
domicilary  rights  had  been  the  more  serious  because  the 
government  officials  had  themselves  participated  in  it.* 

The  American  missionaries  and  the  natives  under  their 
supervision  conduct  an  extensive  system  of  schools.  The 
first  school  was  opened  at  Beirut,  Syria,  in  1824.  Of  schools 
of  all  grades  there  were  in  1904  more  than  570,  with  an  at- 


»  For.  Rel.  1891,  p.  755;  see  also  1892,  p.  547,550,  553,  556. 

»For.   Rel.  1894,  p.  693,  698;   see  also  For.   Rel.  1893,   p.  625,   632. 

•For.   Rel.  1895,   pt.  2,  p.  1258. 

«For.  Rel.  1895,  pt.  2,  p.  1252;  see  also  For.  Rel.  1892,  p.  601. 


MISSIONARY  SCHOOLS 


lia 


tendance  of  more  than  27,800  students  and  pupils.  There 
are  several  colleges,  among  them  the  well  known  Eobert 
College  at  Constantinople. 

For  many  years  the  Turkish  government  regarded  the 
schools  merely  as  auxiliary  to  religious  establishments  which, 
by  ancient  right,  were  exempt  from  local  jurisdiction.  But 
in  1869  a  special  school  law  was  decreed.  Under  this  law 
schools,  other  than  those  established  by  the  government,  can 
be  opened  only  upon  permit  received  from  the  ministry  of 
public  instruction  certifying  government  approval  of  the 
course  of  study,  text-books  and  teachers.  ^  Since  the  ques- 
tion of  issuing  permits  for  schools  has  in  practice  been  left 
chiefly  to  the  local  authorities,  there  has  been  much 
variation  in  the  administration  of  the  school  laws,  and  in 
some  cases  schools  have  been  summarily  closed  even  when  it 
was  believed  that  the  law  had  been  complied  with.  In  1887 
it  was  learned  that  new  and  severely  stringent  regulations 
for  schools  were  about  to  be  decreed.  The  American  min- 
ister, Mr.  Straus,  so  informed  his  colleagues  and,  with  their 
support,  convinced  the  Grand  Vizier  of  the  inadvisability  of 
issuing  regulations  that  would  seriously  and  materially  in- 
fringe upon  the  rights  of  foreigners  under  the  treaties  and 
the  fundamental  laws  of  Turkey.  In  the  same  year  Mr. 
Straus  made  a  journey  through  Syria,  incidentally  reestab- 
lishing amicable  relations  between  the  school  authorities  and 
the  native  officials  in  that  quarter,  and  bringing  about  so 
general  a  reopening  of  schools  that  his  government  ex- 
pressed to  him  its  special  gratification.^ 

According  to  the  regulations  of  1863  for  the  practice  of   Licens- 
medicine,  which  are  believed  still  to  be  in  force,  a  certified   grad- 

U3.L63   iQ 

diploma  of  graduation  from  a  medical  school  must  be  pre-   medi- 
sented  to  the  Imperial  Medical  College  at  Constantinople 
and  a  colloquium  before  the  faculty  of  this  college  must  be 


1  Aristarchi,  Legislation  Ottomane,  vol.  3,  p.  299,  Art.  129,  130. 

=  For.  Rel.  1888,  pt.  2,  p.  1590,  and  passim;  a  memorandum  by  Rev. 
H.  O.  Dwlght,  who  for  many  years  was  the  principal  agent  of  the 
missionaries  in  Turkey  in  their  correspondence  with  the  legation, 
is  printed  In  For.  Rel.  1887,  p.  1085;  see  also  For.  Rel.  1885,  1888, 
pt.  2,  1889,   1890,  1891,  1892,  1893,  1894,  1895,  1897  passim. 


114  MISSIONARY  BOOK  TRADE 

passed  before  the  practice  can  be   entered  upon.     These 

regulations  apply  equally  to  graduates  of  foreign  schools  and 

to  graduates  of  the  American  Medical  College  at  Beirut.^ 

Turkish  Since  1834  American  religious  societies  have  been  con- 

regula- 

tions  tinuously  importing  or  printing  books  and  circulating  them 

printing:  in  Turkey.  Although  no  restriction  upon  this  form  of  busi- 
cuiatingr  ness  is  to  be  found  in  the  capitulations  or  treaties,  the  Turk- 
ish government  has  subjected  it  to  an  almost  prohibitory  in- 
spection and  regulation.  Books  published  in  Turkey  are 
censored  by  the  ministry  of  public  instruction  and  may 
appear  only  under  its  authorization  printed  on  the  title- 
page;  imported  publications  also  are  required  to  bear  an 
inspector's  stamp.  Compliance  with  these  requirements  is 
assumed  to  permit  the  free  circulation  of  the  book  through- 
out the  empire,  but  as  a  matter  of  fact  officials  in  the 
provinces,  paying  little  heed  to  the  authorization  given  at 
Constantinople,  have  detained  shipments  of  books  and 
mutilated  or  destroyed  them.  Although  particular  abuses 
have  been  rectified,  the  Porte,  vexed  by  the  rivalries  of 
various  religious  sects,  old  and  new,  and  fearful  of  opening 
the  way  to  propagandists  of  political  revolution,  has  coun- 
tenanced a  very  severe  and  sometimes  irregular  enforce- 
ment of  the  publication  laws.  On  January  10,  1888,  the 
government  promulgated  a  new  law,  intended  to  take  the 
place  of  the  law  of  January  21,  1858;  but,  as  it  seriously  con- 
flicted with  the  rights  of  foreigners,  the  representatives  of 
the  powers  at  Constantinople,  after  due  consideration,  de- 
clined to  admit  its  application  to  persons  under  their  juris- 
diction. An  objectionable  feature  of  the  new  law  was  its 
fifth  article,  which  provided  that  a  foreigner  should  not  be 
permitted  to  set  up  a  printing  office,  except  upon  furnishing 
a  declaration  legalized  by  the  embassy  or  legation  of  his 
country,  whereby  he  should,  in  his  profession  as  a  printer, 
relinquish  his  extraterritorial  privileges  and  immunities  and 
accept  the  proceedings  which  are  prescribed  for  Ottoman 


>  For.  Rel.  1898,  p.  1101;  also  1872,  p.  672;  1884,  p.  553,  561;  1889,  p.  707,  712; 
1893,  p.  637,  650.  702. 


NATIVE  TEACHERS 


115 


subjects.  The  Secretary  of  State,  Mr.  Bayard,  in  approving 
the  protest  sent  by  Mr.  Straus  and  his  colleagues  to  the  im- 
perial ministry,  referred  to  certain  legislation  of  Spanish- 
American  countries  which  had  sought  to  establish  that  a 
foreigner,  while  continuing  in  his  allegiance  to  his  own 
country,  might  waive  his  right  to  its  protection,  and  stated 
the  position  of  the  United  States  to  be  that  it  was  not  com- 
petent for  a  citizen  to  divest  himself  of  any  part  of  his 
inherent  right  to  protection,  though  he  might  conclude  his 
rights  in  that  regard  by  ceasing  to  be  a  citizen.  The 
proposal  was  even  more  objectionable  in  that  it  sought  to 
make  the  American  government,  through  its  diplomatic 
representative,  a  consenting  party  to  the  renunciation.  ^ 

In  1894  certain  native  teachers  in  American  schools  at 
Aintab  and  Marash  were  arrested  upon  suspicion  of  sedition. 
This  gave  rise  to  an  apprehension  lest  other  arrests  of  such 
teachers  might  be  made  to  the  serious  injury  of  the  mis- 
sionary schools  throughout  the  empire.  In  consequence  of 
representations  made  by  the  American  minister,  Mr.  A.  W. 
Terrell,  the  Ottoman  Porte  permitted  a  representative  of  the 
legation  to  be  present  at  the  investigation  of  the  charges 
against  the  teachers,  a  concession  which  was  regarded  by  the 
Department  of  State  as  affording  ample  opportunity  for  the 
examination  of  complaints  of  capricious  arrests  or  of  the 
vexatious  hindrance  of  the  legitimate  operations  of  the 
schools.  In  the  case  at  Aintab  the  search  for  papers  in  the 
school  building  was  not  made  until  American  representa- 
tives were  present.- 

It  has  been  held  that  claims  of  indemnity  for  destroyed 
property  of  native  teachers,  if  such  property  be  not  personal 
belongings,  but  only  the  actual  and  necessary  adjuncts  of 
work  in  the  American  schools,  may  be  properly  pressed.^ 


Protec- 
tion of 
native 
teachers 


>  For.  Rel.  1888,  pt.  2,  p.  1594.  In  For.  Rel.  1890,  p.  754  the  conditions 
of  the  missionary  book  trade  in  general  are  described  by  Rev.  H.  O. 
Dwight.  See  also  For.  Rel.  1883,  1885,  1888,  pt.  2,  1890,  1891,  1892,  1893 
passim. 

»  For.  Rel.  1894,  p.  740;  see  also  1892,  p.  568,  576;  1895,  pt.  2,  p.  1281. 
•  For.   Rel.   1896,   p.   882. 


116  RIGHTS  TO  INDEMNITY 

indem-  In  1893,  when  there  was  apprehension  of  revolutionary 

mission      disturbances,  and  in  1895,  when  the  Turkish  srovernment 

proper-  .  ...,,. 

ty  de-  was  using  severe  measures  to  repress  an  incipient  Armenian 
revolution,  certain  school  buildings  at  Marsovan,  Harpoot 
and  Marash,  used  by  American  missionaries,  were  destroyed 
by  fire.  It  was  proved  that  the  burning  of  Marsovan  College 
was  done  at  the  instigation  of  a  local  Turkish  official,  and 
that  his  subordinates  started  the  conflagration. 

The  burning  and  plundering  of  the  missionary  buildings 
at  Harpoot  in  February,  1895  furnished  a  still  clearer  case 
of  responsibility  on  the  part  of  the  Turkish  government.^ 
The  fires  were  started  by  Kurds  in  the  presence  of  Turkish 
soldiers,  who  refused  assistance  until  eight  buildings  and  the 
personal  property  of  eleven  missionaries  and  of  a  larger 
number  of  native  helpers  had  been  destroyed  or  carried  off. 
The  total  loss  was  143,700  in  buildings  and  $29,734  in  the 
personal  property  of  the  missionaries. 

In  November,  1895,  missionary  school  buildings  at 
Marash  were  destroyed  by  fire  under  circumstances  similar 
to  those  at  Harpoot  and  with  the  additional  circumstance 
that  the  missionaries  had  formally  requested  the  local  gov- 
ernment for  a  special  guard  two  weeks  before  the  burning 
and  plundering  of  the  buildings  occurred.  ^  The  value  of 
property  destroyed  at  Marash  was  |10,560. 

The  Turkish  government  denied  its  responsibility  for  the 
losses  at  Harpoot  and  Marash  on  the  ground  that  they  were 
occasioned  by  political  disturbances  and  that  the  local 
authorities  had  exerted  every  effort  to  stop  the  confla- 
grations. ^  The  United  States  declined  to  admit  this  con- 
tention since  there  was  abundant  proof  of  the  participation 
or  connivance  of  the  Turkish  authorities.  "No  room  is  dis- 
cernible,''  said  Secretary  of  State  Olney,  "for  the  application 
of  the  limited  and  jealously  qualified  rule  of  international 
law  relative  to  the  responsibility  of  a  government  for  the 


»  For.   Rel.   1896,   p.   895. 

'  For.  Rel.  1895,  pt.  2,  p.  1369.  1416. 

•For.  Rel.  1896.  p.  886.  894. 


ARMENIAN   TROUBLES,   1895  117 

acts  of  uncontrollable  insurgents.  The  negligence  of  the 
authorities  and  the  acts  of  their  own  agents  are  here  in 
question,  not  the  deeds  of  the  Kurds,  nor  still  less  of  the 
supposed  Armenian  rebels  on  whom  the  Porte  seems  to  seek 
to  throw  the  responsibility  of  these  burnings  and  pil- 
lagings."  ^ 

When  the  Armenian  troubles  of  1895-6  were  first  break-   Meas- 

UFGS  of 

ing  out,  the  American  minister  at  Constantinople,  Mr.  A.  protec- 
W.  Terrell,  took  the  precaution  to  ask  the  Ottoman  Porte  ing 
for  special  guards  for  a  number  of  American  missionary  nian  dis- 
stations,  and  he  also  gave  notice  that  the  United  States  bances 
would  continue  to  expect  and  require  full  security  for  its 
citizens  in  Turkey.  The  Turkish  government,  though  guilty 
of  some  neglect  and  delay,  on  the  whole  exerted  itself  to  an 
extraordinary  degree.  The  American  missionaries,  through 
their  government,  testified  their  appreciation  of  its  action 
and  particularly  of  the  courageous  conduct  of  certain  Turk- 
ish oflBcials  and  Turkish  troops  in  defending  them  in  various 
cities  in  Syria  and  eastern  Turkey.  During  the  disturb- 
ances there  was  also  special  cooperation  between  the  Brit- 
ish, German  and  American  consuls  in  places  distant  from 
the  principal  cities.  The  American  naval  vessels,  Marhle- 
head,  Minneapolis  and  San  Francisco  were  sant  to  Turkish 
waters  and  their  officers  placed  in  direct  communication 
with  the  localities  where  trouble  had  been  threatening  or 
had  occurred.  The  -missionaries  were  advised  to  use  their 
own  judgment  as  to  abandoning  certain  stations  for  a  time, 
and  the  Turkish  government  agreed  to  furnish  military 
escorts  when  desired;  but  the  missionaries,  feeling  per- 
sonally responsible  for  the  care  of  the  property  at  their 
interior  stations,  and  finding  their  charities  to  be  so  much 
needed  by  those  aflflicted  communities,  were  universally  of 
the  opinion  that  it  was  their  duty  to  remain  at  their  posts. 
At  no  time  during  the  seventy  years  and  more  that  Ameri- 
can missionaries  had  been  residing  in  Turkey  had  they  been 


» For.  Rel.  1896,  p.  893,  897.    A  different  opinion  was  taken  by  Secre- 
tary of  State  Bayard;  For.  Rel.  1885,  p.  858. 


118 


MISSIONS  IN  PERSIA 


Missions 
In  Per- 
sia 


Relig- 
ious   tol- 
eration 
under  the 
treaties 
of  1858 
with 
China 


in  greater  danger,  and  never  was  the  purely  charitable 
nature  of  their  work,  nor  their  rectitude  and  prudence,  more 
clearly  shown. 

American  missionary  enterprises  in  Persia  appear  at  all 
times  to  have  been  liberally  treated  by  the  government  of 
the  Shah.  The  missionaries  maintain  hospitals  in  the  prin- 
cipal cities  ^  and  conduct  schools  in  many  parts  of  the  coun- 
try. The  restrictions  upon  publishing  and  circulating  books 
are  only  nominal.^  Occasional  difficulties,  caused  by  the  ig- 
norance or  animosity  of  local  authorities,  have  been  prompt- 
ly rectified  by  the  central  government.^  At  the  same  time 
the  government  has  declined  to  permit  the  opening  of  schools 
in  localities  where  serious  opposition  was  apprehended.* 
When  the  missionaries  have  given  assistance  to  Jews  who 
were  being  persecuted  by  native  religious  sects,  the  Persian 
government  has  cooperated  with  them;^  and  when  mission- 
aries from  eastern  Turkey,  as  well  as  many  native  Turks, 
sought  refuge  across  the  Persian  border  in  1896,  the  Persian 
government  took  special  measures  for  their  protection. ' 
The  customary  domiciliary  rights  in  Persia  are  alleged  to  be 
even  more  considerable  than  in  Turkey,  but  the  United 
States  has  not  on  that  account  permitted  its  citizens  or  its 
diplomatic  representatives  to  extend  asylum. ''  Eeal  prop- 
erty in  Persia  may  be  owned  by  missionary  societies  in  their 
own  names.  ® 

The  treaties  made  with  China  soon  after  the  British  war 
of  1839-42  did  not  mention  religious  toleration.  The 
treaties  of  1858,  however,  devoted  an  article  to  the  subject. 
Article  XXIX  of  the  American  treaty,  after  reciting  that 
the  Christian  religion,  as  professed  by  the  Protestant 
and  Roman  Catholic  churches,  taught  men  to  do  good  and 


'  For.  Rel.  1887,  p.  914;  1889,  p.  648. 

•For.  Rel.  1897,  p.  427. 

•  For.  Rel.  1884,   p.  402;   1887,   p.   916;   1893,   p.   480. 
•For.  Rel.   1894,   p.   486,   488,   491. 

•  For.  Rel.  1894,  p.  492. 

•  For.  Rel.  1891'..  p.  46G;   see  also  1SS8,  pt.  2,  p.  1362. 
»For.  Rel.  1894,  p.  492,  497,  503,  606. 

•  For.  Rel.  1892.  p.  355. 


TOLERATION  IN  CHINA  119 

to  do  to  others  as  they  would  have  others  do  to  them,  stipu- 
lated that  persons  professing  and  teaching  those  doctrines 
should  not  be  persecuted  on  account  of  their  faith,  and  that 
no  person,  whether  an  American  citizen  or  a  Chinese  con- 
vert, peaceably  teaching  and  practising  Christianity,  should 
be  interfered  with  or  molested.  By  Article  IV  of  the  Bur- 
lingame  treaty  of  July  38,  1868,  the  scope  of  this  toleration 
was  enlarged  by  the  declaration  that  persons  of  "every 
religious  persuasion"  should  enjoy  "entire  liberty  of  con- 
science," and  should  be  "exempt  from  all  disability  or  per- 
secution on  account  of  their  religious  faith  or  worship  in 
either  country." 

These  provisions  for  -many  years  formed  the  basis  of  mis-  special 
sionary  rights  in  China.  From  time  to  time  the  government  mission-  ° 
of  China,  recognizing  the  unselfish  and  beneficent  work  of 
the  missionaries,  made  special  concessions  in  their  favor  and 
issued  imperial  edicts  for  their  special  protection.  ^  In 
1895  ^  and  1899  ^  the  French  government,  which  has  charge 
of  protecting  Roman  Catholic  interests  in  China,  obtained 
the  confirmation  of  certain  missionary  privileges  in  the  in- 
terior, which,  until  then,  had  rested  mainly  upon  usage  and 
upon  special  instructions  to  provincial  governors.  The  Brit- 
ish treaty  of  September  5,  1902  simply  states  that  Great 
Britain  agrees  to  join  in  a  commission  for  the  investigation 
of  the  missionary  question,  should  such  a  commission  be 
formed  by  China  and  the  treaty  powers. 

The  American  treaty  of  October  8,  1903,  embodies  the    The 
provisions  of  Article  XXIX  of  the  treaty  of  1858  and  adds    ^aT*"*' 
the  following:  S'^  °^ 

No  restrictions  shall  be  placed  on  Chinese  joining  Christian 
churches.     Converts  and  non-converts,   being  Chinese  subjects, 


^  In  1896,  through  the  action  of  the  French  minister  to  China,  M. 
G€rard,  tlie  Tsung-li  Yamen  was  persuaded  to  order  the  expunging 
from  the  Chinese  code  of  all  clauses  restricting  the  propagation  of 
Christianity;  For.  Rel.  1896,  p.  87. 

2  Decree  of  August  9,  1895,  Brit,  and  For.  State  Papers,  vol.  87,  p.  1214. 

«  Decree  of  March  15,  1899,  Jour,  du  droit  internat.  priv6,  1902,  p.  190-2; 
also  infra,  p.  127. 


120 


RIGHTS  IN  THE  'INTERIOR  OP  CHINA 


Right  to 
reside  In 
the    In- 
t«rlor 


RlBht  to 
acquire 
proper- 
In  the  In- 
terior 


shall  alike  conform  to  the  laws  of  China;  and  shall  pay  due 
respect  to  those  in  authority,  living  together  in  peace  and  amity; 
and  the  fact  of  being  converts  shall  not  protect  them  from  the 
consequences  of  any  offence  they  may  have  committed  before  or 
may  commit  after  their  admission  into  the  church,  or  exempt 
them  from  paying  legal  taxes  levied  on  Chinese  subjects  gen- 
erally, except  taxes  levied  and  contributions  for  the  support  of 
religious  customs  and  practices  contrary  to  their  faith.  Mis- 
sionaries shall  not  interfere  with  the  exercise  by  the  native 
authorities  of  their  jurisdiction  over  Chinese  subjects;  nor  shall 
the  native  authorities  make  any  distinction  between  converts 
and  nonconverts,  but  shall  administer  the  laws  without  par- 
tiality so  that  both  classes  can  live  together  in  peace. 

Missionary  societies  of  the  United  States  shall  be  permitted  to 
rent  and  to  lease  in  perpetuity,  as  the  property  of  such  societies, 
buildings  or  lands  in  all  parts  of  the  Empire  for  missionary  pur- 
poses and,  after  the  title  deeds  have  been  found  in  order  and 
duly  stamped  by  the  local  authorities,  to  erect  such  suitable 
buildings  as  may  be  required  for  carrying  on  their  good  work. 

These  new  stipulations  cover  the  principal  missionary- 
difficulties  that  have  arisen  since  1858,  namely,  the  right  to 
acquire  real  property  in  the  interior  of  China  and  the  rights 
of  Chinese  converts.  The  treaty  is  therefore  of  great  im- 
portance. 

It  will  be  observed  that  the  right  of  missionaries  to  reside 
in  the  interior  is  not  included  in  this  treaty.  The  omission 
may  be  ascribed  to  the  fact  that  the  privilege  has  long  exist- 
ed, the  only  restrictions  upon  it  being  made  by  the  authori- 
ties in  remote  communities  where  friendliness  may  not  yet 
have  been  manifested.  When  missionaries  have  taken  up 
their  residence  in  a  community  without  opposition  on  the 
part  of  the  people,  the  local  authorities,  though  personally 
indisposed  toward  them,  have  been  instructed  from  Peking 
to  afford  protection  and  assistance.  ^ 

The  stipulation  that  missionary  societies  of  the  United 
States  shall  be  permitted  to  rent  and  lease  in  perpetuity 
buildings  or  lands  in  all  parts  of  the  Empire  for  missionary 
purposes  put  an  end  to  the  often  recurring  discussion  of 


'  For.  Rel.  1888,  pt.  1,  p.  270;  see  also  1882,  p.  137;  1885,  p.  147;  1895, 
pt.  1,  p.  196. 


RIGHTS  OF  MISSIONARY  SOCIETIES  121 

how  far  the  United  States  would  sustain  the  claims  of  mis- 
sionaries to  the  enjoyment  of  real  property  privileges  ob- 
tained by  special  grant  and  usage.  ^  In  extending  the  privi- 
lege to  missionary  societies  and  not  to  individuals  the  gov- 
ernment of  China  obviates  the  difficulties  which  have  hereto- 
fore arisen  concerning  acquisitions  of  real  property  by  very 
diverse  and  sometimes  undesirable  methods,  as,  for  instance, 
in  the  name  of  a  Chinese  subject  who  bound  himself  to  his 
foreign  principals  by  a  covenant  of  trust.  And  in  stipulating 
that  the  use  of  the  property  shall  be  for  missionary  purposes 
alone,  the  Chinese  government,  at  least  impliedly,  requires 
that  missionary  property  shall  not  be  used  for  any  agricul- 
tural or  industrial  pursuits,  unless  these  pursuits  are  merely 
adjuncts  of  religious  and  charitable  work,  as  for  the  support 
of  students  in  mission  schools.^ 

There  has  been  comparatively  little  difficulty  in  China  con- 
nected with  the  maintenance  of  missionary  hospitals,  orphan 
asylums,  elementary  schools  and  similar  institutions,  and  this 
beneficent  work  has  been  very  extensive.  The  government 
of  China  and  its  provincial  representatives  have,  with  very 
inconsiderable  exceptions,  uniformly  and  generously  ap- 
proved it.  Their  approval  has  also  been  given  to  the 
several  colleges  established  by  missionaries. 

A  matter  of  very  great  difficulty  in  China  has  been  the  JJ^J^'^^^a 
position  of  native  Christian  converts  relative  to  other 
Chinese,  to  the  local  government  and  to  the  missionaries. 
"For  a  Chinaman  to  accept  Christianity,"  wrote  an  Ameri- 
can minister  to  China  in  1885,  "involves  so  complete  a  sur- 
render of  all  that  belongs  to  his  education,  his  theory  of 
government  and  society,  his  views  of  nature,  his  ancestral 
worship,  his  domestic  relations,  and  his  modes  of  life,  that  it 
is  a  wonder  that  a  convert  is  made."^  Yet  the  number  of 
these  converts  has  increased  and  is  increasing  very  rapidly; 
in  1904  the  estimated  number  of  Protestants  was  113,000 
and  of  Roman  Catholics  at  least  500,000.    Most  of  these  are 

>  For.  Rel.  1888,  pt.  1,  p.  270. 
'  For.  Rel.  1897,  p.  105. 
'  For.  Rel.  1885,  p.  149. 


122  NATIVE  CHRISTIANS 

from  the  humbler  classes.  Their  abstention  from  partici- 
pating in  certain  village  festivals,  which  they  regard  as  in- 
volving heathen  ceremonies,  results  in  largely  diminishing 
the  funds  gathered  by  officials  as  a  form  of  tax  for  the 
Mr.  An-  support  of  such  festivals.  As  long  ago  as  1862  the  French 
action  minister  persuaded  the  imperial  authorities  to  issue  an  edict 
exempting  the  Eoman  Catholics  from  such  taxation,  and 
though  the  authorities  were  thought  to  be  willing  to  give 
the  same  exemption  to  other  Christian  converts,  they  were 
not  moved  to  do  so  formally  until  1881,  when  the  American 
minister,  Mr.  J.  B.  Angell,  availed  himself  of  a  favorable 
opportunity  to  make  the  request.  ^  From  time  to  time  the 
local  authorities  have  refused  to  Chinese  converts  the  privi- 
lege of  entering  the  Chinese  government  examinations,  but 
such  refusal  does  not  appear  to  have  been  approved  by  the 
central  government  and  it  is  clearly  a  violation  of  the 
treaties.  ^  The  'molestation  of  native  converts  has  some- 
times taken  the  form  of  intimidation  by  means  of  placards 
as  well  as  the  form  of  refusing  to  protect  them  against 
personal  violence  and  the  destruction  of  their  property.  The 
central  government  has  in  such  cases  directed  the  local 
officials  to  afford  protection  and  redress.^  In  a  number  of 
cases  complaint  has  been  made  that  disreputable  characters 
have  become  converts  with  the  object  of  obtaining  mission- 
ary assistance  in  criminal  prosecutions  to  which  they  were 
liable.  American  missionaries  have  very  seldom,  if  ever, 
exposed  themselves  to  the  charge  of  interfering  to  protect 
such  Chinese  from  the  ordinary  course  of  justice,  whatever 
they  may  have  done  to  assist  them  in  securing  an  impartial 
trial.*  The  relations  between  the  missionaries  and  their 
converts  are,  however,  so  close  that  difficulties  involving 
rights  of  the  converts  have  often  resulted  in  infringements 
upon  the  rights  of  the  missionaries  and  experience  has 
shown  it  to  be  necessary  to  make  very  specific  treaty  stipu- 
lations on  these  points. 

1  For.  Rel.  1881,  p.  272. 

»  For.  Rel.  1897,  p.  82;  see  also  For.  Rel.  1871,  p.  153;  1881,  p.  308. 

»  For.  Rel.  1896,  p.  84. 

*  The  imperial   Chinese   regulations   for   official   intercourse   between 


THE  ROCKHILL  PROPOSITIONS 


123 


The  educated  and  official  classes  of  China,  being 
naturally  conservative  in  regard  to  the  introduction  of 
new  religions,  have  often  been  supposed  to  be  actively  an- 
tagonistic to  them,  but  their  attitude  appears  on  the 
whole  to  have  been  one  of  indifference.  The  central  govern- 
ment has  repeatedly  affirmed  its  purpose  to  maintain  the 
full  toleration  granted  by  the  treaties,  but  its  local  repre- 
sentatives have  not,  until  recent  years,  been  made  to  feel 
their  responsibility  for  the  preservation  of  order  in  com- 
munities in  the  interior  where  foreign  missionaries  have 
been  permitted  to  reside.  An  erroneous  idea  has,  to  a  con- 
siderable extent,  prevailed  among  the  officials  and  the  people 
that  payments  of  money  afforded  complete  satisfaction  for 
all  injuries,  so  that  the  punishment  of  those  who  have  par- 
ticipated in  anti-foreign  riots  has  seldom  been  so  prom])t 
and  severe  as  it  should  have  been.  In  1895  two  very  bloody 
outrages  were  suffered  by  American  and  other  missionaries, 
and  a  commission  sent  by  the  United  States  to  investigate 
them,  reported  that  certain  provincial  authorities,  men- 
tioned by  name,  had  grossly  and  culpably  neglected  to  use 
their  influence  and  the  means  at  their  disposal  to  prevent 
the  outbreak  of  violence.  At  the  suggestion  of  the  Act- 
ing Secretary  of  State,  Mr.  "W.  W.  Rockhill,  the  minister  to 
China,  prepared  a  note  to  the  Tsung-li  Yamen,  proposing 
certain  measures  considered  desirable  for  preventing  the 
recurrence  of  anti-foreign  riots.  ^  The  third  and  fourth 
propositions  were  as  follows: 


Respon- 
slbUlty 
of  pro- 
vincial 
govern- 
ment to 
protect 
mission- 
aries 


Mr. 
RockhiU's 

note 


3.  The  determination  of  and  formal  declaration  by  China  by 
Imperial  decree  to  hold  responsible  and  promptly  punish  not 
only  all  individuals  or  minor  officials  directly  or  remotely  In- 
volved upon  the  occurrence  of  any  riot  whereby  peaceable  Amer- 
ican citizens  have  been  affected  in  person  or  property  or  injured 
in  their  established  rights,  but  also  the  viceroy  or  governor  of 
the  province  in  which  it  has  occurred,  who  is  directly  responsible 


local    authorities    and    Roman    Catholic    missionaries    are    printed    in 
Rockhill,   Treaties  Relating  to  China  and  Korea,   p.  424. 
1  For.  Rel.  1896,  p.  57,  63-4. 


124  RESPONSIBILITY    OF   LOCAL   RULERS 

to  the  Throne  for  the  acts  and  omissions  of  every  one  of  his  sub- 
ordinates, although  his  only  fault  may  be  ignorance. 

4.  That  the  punishment  of  officials  found  guilty  of  negligence" 
in  case  of  a  riot,  or  of  connivance  with  rioters,  shall  not  be 
simply  degradation  from  or  deprivation  of  office,  but  that  they 
shall  be,  in  addition,  rendered  forever  incapable  of  holding  office, 
and  shall  also  be  punished  by  death,  imprisonment,  confiscation 
of  property,  banishment,  or  in  some  other  manner  under  the 
laws  of  China  in  proportion  to  the  enormity  of  their  offense. 

Attitude  In  reply  the  Tsung-li  Yamen  conceded  that  the  local 
Chinese  authorities  should  be  punished  for  failing  to  take  pre- 
m^iT"'  cautionary  measures  to  prevent  riots,  but  declined  to  hold 
the  viceroys  and  governors  responsible.  Mr.  Denby  then 
very  urgently  warned  the  Tsung-li  Yamen  of  the  imminent 
loss  of  character  and  respect,  not  to  speak  of  financial  em- 
barrassment, which  China  would  suffer  if  the  viceroys  and 
governors,  who  had  undoubted  power  to  prevent  the  riots, 
were  not  made  responsible.  ^  In  the  light  of  the  events  of 
1900  the  timeliness  of  this  warning  is  apparent,  and  it  is 
believed  that  the  advisability  of  adopting  the  proposition 
can  no  longer  be  doubted. 

The  hesitancy  of  the  Chinese  government  to  take  definite 
action  until  forced  to  do  so  is  well  illustrated  by  the  imperial 
decree  of  January  15,  1898,  ^  which  summarizes  the  mission- 
ary situation  as  follows: 

Since  the  removal  of  the  prohibition  of  Western  religion 
Christian  places  of  worship  are  found  in  almost  all  parts  of  the 
Empire,  foreign  missionaries  proselytize  in  sight  of  each  other, 
and  the  number  of  Chinese  converts  increases  from  day  to  day 
and  month  to  month.  One  false  step  by  local  officials  in  dealing 
with  them  gives  rise  to  Bmbarrassments  at  home  and  abroad. 
Beyond  doubt  this  question  has  an  important  bearing  on  the 
peace  of  the  State,  and  caution  is  absolutely  necessary. 

Missions         While  the  efforts  of  missionaries  to  establish  schools  and 
In  Korea    j^Qg^j^^jg  j^  j.^^  ^^^^  poP^g  ^f  Korea^  appear  to  have  met 

»  For.  Rel.  1897,  p.  67. 

» Brit,  and  For.  State  Papers,  vol.  90,  p.  341. 

•For.  Rel.  1884,  p.  127;  1886,  p.  222. 


MISSIONS  IN  KOREA  AND  SIAM  125 

with  no  disapproval  on  the  part  of  the  Korean  government, 
a  positive  disinclination  has  been  manifested  toward  re- 
ligious proselytism,  particularly  in  the  interior.^  The 
American  treaty  with  Korea  of  May  22,  1882,  does  not  grant 
the  privilege  of  residence  in  the  interior,  but  the  privilege 
has  been  enjoyed  with  the  acquiescence  of  the  Korean  gov- 
ernment except  in  the  remote  interior.  It  has  been  asserted 
that  the  treaty  of  June  4,  1886,  between  France  and  Korea 
permits  freedom  of  travel  in  the  interior  on  passports,  since 
it  omits  the  restrictions  of  such  travel  to  purposes  of 
'pleasure'  and  'trade*  contained  in  the  treaty  of  No- 
vember 26,  1883,  between  Great  Britain  and  Korea.  ^  In 
the  very  few  instances  in  which  missionaries  and  their  native 
helpers  have  been  molested  the  Korean  government  has 
caused  immediate  reparation  and  the  dismissal  from  office 
and  punishment  of  the  local  officials  responsible  for  the 
failure  to  give  protection.^ 

Missionaries  to  Siam  have  no  privilege  under  treaty  to   Missions 

.  p     ,1  1  K     ^^  Slam 

establish   themselves   m   the   mterior   oi   the   country.      A 

formal  request  made  in  1884  that  such  a  privilege  be 
granted  for  a  particular  mission  station  was  not  directly 
granted  by  the  central  government  but  was  referred  to  the 
local  viceroy.* 

In  1889  the  Siamese  government  liberally  donated  prop- 
erty in  Eatburi  for  the  establishment  of  a  mission  hospital.^ 


V— REAL   PROPERTY 

The  American  treaties  with  China  of  1844  and  1858,  re-  Land 

conces- 

sembling  the  British  and  other  treaties  of  approximately   sions  in 

•  •  1     n        •         Ti    ^^^  open 

the  same  dates,  provide  that  American  citizens  shall  enjoy  ail   ports  of 


proper  accommodations  in  renting  and  occupying  land  within 


China 


1  For.  Rel.  1888,  pt.  1,  p.  444,  446,  447. 

»  For.  Rel.  1901,  p.  396. 

'For.  Rel.  1901,  p.  387;  1903,   p.  626. 

*  For.  Rel.  1884,  p.  453,  454,  461. 

»  For.   Rel.  1889.   p.  657. 


126 


ACQUIRING  ,LAND  IN  CHINA 


Unde- 
sirable 
methods 
of  ac- 
quiring 
land  In 
the  Inte- 
rior 


definite  boundaries  at  the  open  ports.  Insistence  upon  the 
acquisition  of  any  particular  site  is  forbidden.  Under  these 
provisions  certain  small  areas,  each  of  them  less  than  a  mile 
square  and  situated  apart  from  the  crowded  districts  of  the 
Chinese  cities,  were  selected  by  the  mutual  agreement  of  the 
consuls  and  the  local  representatives  of  the  imperial  govern- 
ment, and  within  these  areas  leases  of  property  in  perpetuity 
were  made  to  American  citizens  under  the  registration  and 
seal  of  the  Chinese  authorities  and  the  American  consuls. 

To  prevent  unreasonable  restrictions  upon  the  renting  of 
land  for  suburban  residences— there  had  been  much  de- 
mand for  such  residences  near  Canton,  Shanghai  and 
Tientsin— the  treaty  of  1858  between  Great  Britain  and 
Cliina  was  made  to  contain  the  words  'at  other  places' 
after  the  words  'treaty  ports.'  The  right  to  rent  land  'at 
other  places'  has  occasionally  been  claimed  by  foreigners  to 
include  the  right  to  rent  land  any^-here  in  the  interior,  but 
no  government  has  given  countenance  to  such  a  strained  in- 
terpretation of  the  expression.^ 

The  desire  to  acquire  land  in  the  interior  has,  however, 
been  so  insistent  that  some  individuals  have  remained  in  the 
interior  under  the  protection  of  travel  certificates  for  longer 
periods  than  those  certificates  were  legally  good  and  have 
then  claimed  the  right  by  sufferance  to  rent  land  in  per- 
petuity, notwithstanding  they  were  supposed  to  be  occupying 
it  only  temporarily.  Other  persons  have  used  the  name  of 
a  Chinese  in  acquiring  land,  securing  themselves  by  a 
covenant  of  trust;  but  such  a  trust,  being  an  undertaking  to 
circumvent  the  treaty,  had,  of  course,  no  legality.  This  latter 
undertaking  is  to  be  distinguished  from  that  of  financially 
or  otherwise  assisting  a  Chinese  commercial  agent  or  mis- 
sionary helper  to  acquire  land  in  his  sole  and  unrestricted 
right  while  continuing  his  services  in  furthering  the  enter- 
prises of  his  principals.^ 

For   some  time   after  the  ratification   of   the   treaty   of 


»For.    Rel.    1881,    p.    282,    316. 
»For.  Rel.  1881,  p.  308. 


PROPERTY  OF  MISSION  SOCIETIES  127 

October  25,  1860,  between  France  and  China,  the  opinion 
prevailed  that  under  its  sixth  article,  as  given  in  the  Chinese 
text,  missionaries  were  permitted  to  reside  in  the  interior 
and  rent  property  there.  This  misapprehension  was  due  to 
the  interpolation  into  the  Chinese  text  of  the  words:  "It  is 
in  addition  permitted  to  French  missionaries  to  rent  and 
purchase  land  in  all  the  provinces  and  to  erect  buildings 
thereon  at  pleasure."  No  such  words  appeared  in  the 
French  text  of  the  treaty,  and  the  French  text  was  declared 
to  be  the  original.^ 

On  the  other  hand  the  Chinese  government  has  more  and  -^fj^"^'*^ 
more  frequently  given  special  authority  to  its  officials  in  special 
various  localities  to  permit  missonaries  to  acquire  land,'  and 
if,  unfortunately,  the  missionaries  have  subsequently  been 
molested  in  the  enjoyment  of  their  special  privileges  and 
their  property  has  been  destroyed,  the  American  govern- 
ment has  demanded  for  them  protection  and  indemnity.- 

The  privileges  of  renting  land  in  the  interior  are  said  to 
have  been  granted  to  missionaries  under  the  protection  of 
France  by  a  secret  convention  of  1865,  between  France  and 
China,  known  as  the  Berthemy  convention.  This  is  in- 
ferred from  published  French  correspondence  relating  to  the 
withdrawal  of  a  regulation  requiring  a  Chinese  owner  to 
obtain  the  consent  of  the  local  authorities  before  negotiating 
ihe  lease.^ 

But  whatever  the  significance  of  this  French  convention   The 
of  1865,  China  has  more  recently  granted  the  privilege  in    can 

tr€s.ty  of 

specific  terms  in  the  treaty  of  October  8,  1903  with  the   1903 
United  States,  a  portion  of  the  fourteenth  article  of  which 
Teads : 

Missionary  societies  of  the  United  States  shall  be  permitted  to 
rent  and  to  lease  in  perpetuity,  as  the  property  of  such  societies, 
buildings  or  lands  in  all  parts  of  the  Empire  for  missionary  pur- 
poses and,  after  the  title  deeds  have  been  found  in  order  and  duly 

1  For.  Rel.  1875,  pt.  1,  p.  334;  1886,  p.  96. 

2  For.  Rel.  1882,  p.  132;  1888,  pt.  1,  p.  270;  see  also  For.  Rel.  1880,  p.  298; 
1893,  p.  230,  233. 

*  De  Clercq,  Traitfis  de  la  France,  vol.  20,  p.  233;  see  also  supra, 
p.  119. 


128  THE  LEX  LOCI  APPLICABLE 

stamped  by  the  local  authorities,  to  erect  such  suitable  build- 
ings as  may  be  required  for  carrying  on  their  good  work.' 

No  general  privilege  of  this  kind  has  been  extended  to 
commercial  ccmpanies  or  to  individuals,  but  if  in  the  future 
it  is  so  extended  to  the  subjects  or  citizens  of  any  other 
power,  it  will  be  equally  extended  to  American  citizens  by 
virtue  of  most-favored-nation  clauses  in  the  American 
treaties. 

As  to  the  legal  principles  and  forms  under  which  foreign- 
ers acquire  and  hold  land  in  China,  it  may  be  observed  that  it 
has  been  held  in  an  English  case  ^  that  the  principle  that  the 
title  to  realty  is  governed  by  the  lex  loci  is  not  affected  by  the 
rights  of  extraterritoriality.  A  British  consular  court  be- 
fore which  real  property  rights  are  being  litigated  is  to  be 
governed  in  this  respect  by  the  Chinese  law  and  usage. 

It  would  seem  inevitable,  however,  that  legal  diflBcultiea 
in  litigation  over  real  property  held  by  foreigners  in  China 
should  continue  to  multiply  until,  with  the  reorganization 
of  the  Chinese  system  of  jurisprudence,  the  jurisdiction  of 
real  property  is  left  to  Chinese  courts.^ 

No  privileges  of  owning  or  renting  real  estate  in  Japan 
were  granted  to  foreigners  by  treaty,  except  the  privilege 
of  renting  in  the  foreign  concessions  at  certain  open  ports. 
By  the  laws  of  Japan  no  Japanese  could  sell  land  to  a 
foreigner  or  give  title-deeds  as  security.* 

»  The  British  treaty  of  September  5,  1902,  had  granted  no  new  privi- 
leges in  respect  to  acquiring  real  property;  For.  Rel.  1903,  p.  551. 

'  Macdonald  v.  Anderson,  British  Consular  Court  at  Tientsin,  Jan- 
uary 16,  1904,  North  China  Herald,  vol.  Ixii,  February  5,  1904,  p. 
247-50.  The  opinion  in  this  case  contains  an  excellent  discussion  of 
the  principle  by  Mr.  Justice  F.  S.  A.  Bourne;  a  portion  of  the  opinion 
is  printed  infra.  Appendix  VIII.  A  similar  judgment  was  given  in 
Secretary  of  State  v.  Charles  worth  Pilling  and  Co.,  in  1901;  Law 
Times  Reports,   vol.   84,   N.    S.   p.   212. 

•  In  1856  an  American  assigned  his  real  property  in  Canton  to  a  Brit- 
ish banking  corporation  for  the  benefit  of  the  creditors  of  Nye 
Brothers  and  Co.,  and  foreclosure  proceedings  took  place  under 
direction  of  the  British  authorities,  the  American  authorities  con- 
Benting.  This  was  apparently  contrary  to  the  rule  of  suing  the  de- 
fendant in  the  court  of  his  consul.  Sen.  Ex.  Doc.  22,  p.  989  (vol.  9), 
35th  Cong.,  2d  Sess. 

*  For.   Rel.  1873,  pt.  1,  p.  565. 


TURKISH  REAL  PROPERTY  LAW 


129 


In  contrast  with  the  rule  existing  in  China  that  jurisdic- 
tion of  real  property  rights  is  to  be  given  to  the  court  of  the 
defendant's  nationality,  there  is  the  rule  existing  in  Turkey 
that  in  respect  to  the  real  property  a  foreigner  acquires 
in  that  country  he  is  subject  to  Turkish  jurisdiction. 

It  appears  that  it  was  the  Turkish  claim  of  exceptional 
jurisdiction  over  foreigners  who  held  real  property,  and  not 
an  actual  denial  of  the  privilege  of  acquiring  it,  that  caused 
them  generally  to  abstain  from  such  acquisition.  The  au- 
thorities upon  Turkish  law  declared  that  a  foreigner  holding 
land  in  Turkey  was  obliged  to  pay  not  only  a  land  tax,  but 
also  a  personal  tax,  and  thus  to  accept  approximately  the 
same  standing  before  the  law  as  a  zimmi  or  non-Moslem 
subject  of  the  Sultan.  Against  the  imposition  of  such 
taxes  the  foreign  merchants  permanently  established  in 
the  Turkish  ports  had  been  protected  only  with  difficulty, 
as  the  frequently  repeated  inhibitions  of  the  capitulations 
testify;  and  the  same  difficulty  led  to  the  insertion  of  a  pro- 
vision in  the  French  ordinance  of  1781  that  subjects  of 
France  were  forbidden  to  acquire  real  property  in  Turkey 
either  in  their  own  names  or  under  any  form  of  partnership, 
except  such  lands  and  houses  in  the  seaports  as  were  neces- 
sary for  offices,  warehouses  and  residences. 

Among  the  propositions  of  change  in  legislation  made  by 
the  Ottoman  Porte  in  1856  one  concerned  real  property. 
The  vast  areas  of  land  held  under  vaconf  titles,  that  is, 
lands  owned  by  the  Moslem  religious  organizations  and 
leased  to  individuals  under  such  complicated  conditions  as 
to  make  that  form  of  tenure  very  undesirable  and  especially 
so  for  non-Moslems,  were,  to  a  large  extent,  to  be  placed 
under  a  more  simple  and  definite  system.  More  lands  were 
to  be  made  available  under  fee  simple  or  inulk  titles  by 
opening  to  acquisition  by  individuals  large  tracts  owned  by 
the  Sultan,  and  acquisition  under  mulk  titles  was  to  be 
otherwise  systematically  encouraged. 

But  in  exchange  for  introducing  these  improvements  and 
admitting  foreigners  to  the  enjoyment  of  them  the  Ottoman 
Porte  demanded  of  the  powers  a  denunciation  of  the  capitu- 


Turklsh 
claims 
of  juris- 
diction 


Im- 

prove- 

nent  of 

Turkish 

real 

property 

law 


Origin    of 
the    real 
proper- 
ty   privi- 
leges 


130  RESCRIPT  OF  1867 

lations.  This  was  a  manifestly  impossible  condition.  Soon 
after  the  admission  of  Turkey  to  the  European  concert  in 
1856  that  government  had  so  cruelly  dealt  with  a  threatened 
uprising  in  Syria  as  to  cause  horror  throughout  the  civilized 
world;  and  the  dread  of  permitting  Turkey  to  increase  its 
authority  over  foreigners  and  their  property  appeared  to 
remove  all  possibility  of  coming  to  an  agreement.  However, 
the  financial  difficulties  of  the  Turkish  government,  which, 
in  the  early  sixties,  were  so  great  as  to  require  one-third  of 
the  annual  revenue  to  pay  interest  and  amortisation,  and 
the  willingness  of  the  government  of  France  to  take  some 
measure  to  get  better  security  for  the  very  large  loans  its 
subjects  had  made  to  Turkey,  brought  France  and  Turkey  to 
a  compromise.  In  1867  the  government  of  Turkey  extended 
the  right  of  foreigners  to  hold  real  estate  in  Turkey  upon 
condition  that  their  governments  would  make  a  partial  re- 
striction of  their  extraterritorial  rights.  France  accepted 
the  conditions  by  signing  a  protocol  with  Turkey,  June  9, 
1868,  and  Great  Britain  accepted  them  in  the  same  manner 
July  28,  1868.^ 
Nature  of  The  imperial  rescript  of  January  18,  1867,-  provides  that 
estatr^  foreigners,^  proprietors  of  all  real  property  in  Turkey  are, 
ofiSCT*  in  consequence  of  the  enjoyment  of  that  privilege,  placed 
upon  terms  of  equality  with  Ottoman  subjects  in  all  matters 
relating  to  their  real  property.  The  legal  effect  of  this 
equality  is  to  oblige  foreigners,  owners  of  land  in  Turkey, 
to  conform  to  the  local  law  in  the  enjoyment,  transmission, 
alienation  and  hypothecation  of  landed  property,  to 
oblige  them  to  pay  all  charges  and  taxes  upon  it,  and  to 

1  The  French  text  may  be  found  in  the  Brit,  and  For.  State  Papers, 

vol.  58,  p.  22. 

spadel  (a  dragoman  of  the  German  embassy  in  Constantmople), 
Das  Grundeigentum  in  der  Tiirkei  nach  der  neueren  Gesetzgebung, 
Jahrbuch  der  internat.  Vereinigung  fur  vergleichende  Rechtswis- 
senschaft  und  Volkswirtschaftlehre.  vol.  vi  and  vii,  p.  435,  1667. 

'  Former  Turkish  subjects  naturalized  abroad  are  declared  not  to 
be  Included,  and  it  is  stated  that  a  special  law  is  to  be  enacted  ap- 
plicable to  them;  but  they  have  in  practice  been  granted  this  privi- 
lege and  the  law  referred  to  has  not  been  enacted;  For.  Rel.  1897,  p. 
589.  It  has  been  alleged  that  the  law  referred  to  was  that  of  April  21, 
1858;  supra,  p.  96. 


PROTOCOL  OF  1874  131 

render  them  amenable  directly  and  solely  to  the  Ottoman 
civil  tribunals  in  all  real  property  actions,  reserving  only 
the  immunities  attached  to  their  persons  and  their  movable 
goods  according  to  the  treaties.  If  a  foreigner,  an  owner  of 
real  estate,  goes  into  bankruptcy,  his  assignees  may  apply 
to  the  Ottoman  civil  tribunals  to  obtain  the  sale  of  such 
part  of  his  real  estate  as  the  law  permits  to  be  sold  for 
the  satisfaction  of  debts,  and  similarly  the  execution  of  a 
judgment  obtained  by  one  foreigner  against  another  in  a 
foreign  tribunal  may  be  effected  through  Ottoman  authori- 
ties and  tribunals  to  the  extent  allowed  by  Ottoman  law. 
The  privilege  of  making  dispositions  of  real  property  by  gift 
or  by  testament  is  restricted  to  such  real  property  as  the 
Ottoman  law  permits.  Intestate  succession  to  real  property 
and  succession  to  such  real  property  as  the  law  does  not  per- 
mit foreigners  to  dispose  of  by  gift  or  testament,  is  to  be 
governed  in  accordance  with  Ottoman  law. 

By  the  protocol  of  August  11,  1874,^  the  United  States  The  pro- 
accepted  the  conditions  upon  which  the  real  estate  privi-  1574 
leges  were  offered  by  Turkey.  This  protocol  is  identical  with 
the  protocols  between  Turkey  and  other  powers,  but  it  was 
signed  later  than  most  of  them.  It  stipulates  at  the  begin- 
ning that  it  does  not  interfere  with  the  immunities  specified 
by  the  treaties,  which  continue  to  protect  the  person  and 
the  movable  property  of  foreigners  who  may  become  owners 
of  real  estate.  It  repeats  the  rule  that  the  domicil  of  a  for- 
eigner is  inviolable,  but  states  that  this  immunity  of  domi- 
cil is  to  extend  only  to  the  dwelling  house,  the  build- 
ings appurtenant  to  it  and  the  enclosures  immediately  about 
it.  In  localities  distant  nine  hours  or  more  -  from  the  con- 
sulate, when  the  necessity  of  so  doing  is  urgent  and  for  the 
search  and  proof  of  murder,  arson,  robbery  and  other  speci- 
fied crimes,  the  agents  of  the  public  force,  with  the  assistance 
of  the  'elders  of  the  commune'  and  without  notifying  the 
consul,  may  enter  the  residence  of  a  foreigner,  whether  or 

1  The  original   text  is  in  French;   supra,  p.   30,  footnote   2. 

2  Distance   is   said   to   be  commonly   measured  in   Turkey   by   the 
rate  of  a  walking  horse. 


132 


JURISDICTION   UNDER   THE   PROTOCOL 


Effect  of 
the    pro- 
tocol on 
Juris- 
diction 


not  he  is  regarded  as  chargeable  with  one  of  the  afore- 
mentioned crimes;  but,  if  he  be  arrested,  his  personal  im-. 
munities  are  to  be  respected  according  to  treaty  and  usage, 
and  a  report  in  detail  of  the  domiciliary  visit  is  to  be  written 
and  immediately  sent  to  the  superior  Turkish  authorities 
and  to  the  consul.  In  localities  similarly  distant,  and  with 
respect  to  controversies  and  ofEenses  of  a  specified  lesser 
importance,  foreigners  may  be  tried  by  the  council  of  elders 
without  the  assistance  of  a  consular  delegate,  but  the  right 
of  appeal  to  the  tribunal  of  the  'arrondissement'  with  con- 
sular assistance  is  reserved,  and  while  such  an  appeal  always 
suspends  execution  of  the  sentence  of  the  lower  court,  in  no 
case  can  there  be  a  forcible  execution  of  judgment  without 
the  cooperation  of  the  consul.  A  foreigner,  in  whatever 
locality  he  may  be,  may  voluntarily  consent  in  writing  to  be 
tried  before  the  Turkish  courts  without  consular  assistance, 
but  the  protocol  reserves  his  right  of  appeal  to  the  tribunal 
of  the  'arrondissement'  where  the  trial  shall  proceed  in  the 
usual  way. 

It  was  the  opinion  of  the  French  ambassador  at  Con- 
stantinople, M.  Bouree,  who  had  a  leading  part  in  the  persu- 
ading the  Ottoman  Porte  to  issue  the  rescript  of  1867  and 
in  giving  form  to  the  protocol  proposed  by  the  Porte  to 
the  foreign  powers,  that  both  the  rescript  and  the  protocol 
were  applicable  to  owners  of  real  estate  only.^  But  there  is 
difficulty  in  supporting  this  view,  for  where  the  protocol 
stipulates  that  in  certain  cases  foreigners  may  be  tried  in 
Turkish  courts,  with  a  reservation  of  the  right  to  appeal, 
it  continues:  "It  is  well  understood  that  all  these  restric- 
tions do  not  concern  cases  which  have  for  their  object  ques- 
tions of  real  estate."  The  conclusion  is  that  they  do  apply 
to  other  cases.  But  the  United  States  has  declined  to  admit 
that  the  protocol  of  1874  forms  any  derogation  from  the 
rights  of  its  citizens  under  the  capitulations  except  in  con- 


'  Van  Dyck,  Capitulations,  p.  81;  Padel,  cited  supra,  p.  130.  foot- 
note 2  at  p.  1698-701,  shows  what  questions  related  to  those  of  real 
estate  are  regarded  by  the  Turkish  Government  as  within  its  juris- 
diction. 


EXPATRIATED  SUBJECTS  133 

nection  with  the  real  estate  they  may  have  acquired.^  As  a 
matter  of  fact  the  number  of  consulates  in  the  interior  has 
been  largely  increased  in  recent  years  with  the  obvious  pur- 
pose of  securing  better  protection  to  foreigners.  The  influx 
of  foreign  capital  into  the  interior  appears  to  have  fallen  far 
beneath  the  expectations  of  the  Turkish  government.  The 
agreement  of  1904  between  Germany,  Great  Britain  and 
France,  under  which  the  proposed  railroad  from  Smyrna 
to  the  Persian  Gulf  is  to  be  capitalized,  makes  the  building 
of  the  railroad  in  the  near  future  probable,  and  this  will  no 
doubt  bring  much  private  capital  into  central  and  eastern 
Turkey. 

Under  the  Ottoman  law  persons  born  Ottoman  subjects,  Rights  of 
who,  without  permission,  may  have  become  naturalized  sub-  'triated 
jects  of  a  f  oregn  state  subsequently  to  the  law  of  nationality 
of  1869  and  then  return  to  Turkey,  do  not  have  the  right  to 
acquire  real  property  in  Turkey.  In  one  case  the  Turldsh 
government  went  so  far  as  to  intimate  that  real  property 
which  had  been  nominally  owned  by  a  naturalized  American 
citizen  could  not  be  conveyed  to  his  sons  by  testament, 
but  would  at  his  death  become  the  property  of  the  state. 
The  American  'minister  declined  to  acquiesce  in  this  prop- 
osition.- 

There  have  been  restrictions  upon  the  acquisition  by  Jews,   Rights  of 

T    •      T-»  1      X-  xT_       Jews  in 

both  native  and  foreign,  of  realty  situated  m  Palestine;  the  Palestine 
object  of  these  restrictions  appears  to  have  been  to  prevent 
acquisition  by  non-residents  for  speculative  purposes  or  for 
colonization.  It  was  the  opinion  of  the  Secretary  of  State 
that  under  Article  XI  of  the  Ottoman  law  of  1867  "a  specific 
disability  imposed  upon  Ottoman  subjects  for  any  cause  as 
regards  their  tenure  of  real  estate  would  in  like  manner 
be  deemed  to  apply  to  aliens,  provided  no  discriminations 
among  the  several  classes  of  foreigners  were  thereby 
made.'^* 


»  For.  Rel.  1892,  p.  545,  554. 

'For.  Rel.  1883,  p.  809,  815,  821,  833. 

•For.  Rel.  1898,  p.  1103,  1108;  see  also  1893,  p.  638,  651,  669;  1897,  p.  588- 


134 


APPEAIiS  IN  REALTY   CASES 


Right  to 
appeal 


Privi- 
leges in 
Persia 


In  1859  an  American  missionary  purchased  real  property 
in  the  name  of  an  Ottoman  subject,  the  sale  having  been 
made  by  order  of  the  Turkish  authorities  in  satisfaction  of 
a  debt,  and  in  1868  the  deed  was  put  into  the  name  of  the 
Aonerican  as  real  owner.  His  title  to  the  land  was  tested 
and  found  good  in  a  Turkish  court,  and,  upon  appeal  to  the 
highest  court  for  real  property  cases,  was  still  found  good; 
but  another  court  ordered  dispossession.  Only  after  bring- 
ing the  case  to  the  attention  of  the  imperial  authorities 
at  Constantinople  was  the  title  of  the  American  owner 
finally  confirmed.^  It  would  seem  that  an  apparent  mis- 
carriage of  justice  in  matters  of  real  estate,  even  though 
Turkish  jurisdiction  be  reserved,  would  make  recourse  to 
diplomatic  action  justifiable. 

In  1891  it  was  reported  by  the  American  minister  to  Per- 
sia, Mr.  Truxtun  Beale,  that  whereas  the  law  of  Persia  had 
not  allowed  foreigners  to  hold  real  estate  in  Persia,  with  the 
result  that  certain  American  missionaries  who  had  acquired 
real  property  in  the  name  of  a  native  helper  had  been  left  in 
the  lurch  by  his  claiming  the  property  as  his  own,  it  had  been 
found  to  be  feasible  to  obtain  the  real  estate  privileges  for 
Americans  and  secure  them  in  the  enjoyment  thereof  by 
securing  the  seal  of  the  Grand  Vizier  upon  every  deed  of 
property  purchased.^ 


Import 
and  ex- 
port 
custom 
duties 


VI  —  TAXATION 

For  the  protection  of  commerce  from  extreme  -measures 
of  taxation,  it  is  usual  to  provide  in  the  treaties  with  coun- 
tries where  extraterritorality  prevails  that  the  tariff  of  im- 
port and  export  duties  shall  not  exceed  a  fixed  maximum 
rate  and  that  customs  schedules  and  regulations  shaU  be 
agreed  upon. 

A  common  stipulation  in  the  Turkish  capitulations  was 


1  For.  Rel.  1885.  p.  815,  843,  845;  see  also  1892,  p.  558;  1894,  p.  710. 
»For.  Rel.  1892,  p.  355. 


TAXATION  IN  TURKEY  135 

that  a  certain  per  cent,  ad  valorem  on  imported  goods 
was  to  be  collected,  and  that,  in  ease  of  dispute  as  to  the 
value  of  the  goods,  the  importer  might  pay  in  kind.  The 
regulations  appended  to  the  commercial  treaty  of  1861  be- 
tween the  United  States  and  Turkey  permitted  payment  in 
kind  in  all  instances  where,  the  valuation  of  the  goods  not 
being  given  in  the  enumerated  lists,  a  dispute  as  to  their 
value  arose.  There  is  no  special  arrangement  in  Turkey, 
as  there  is  in  China,  as  to  the  jurisdiction  of  controversies 
arising  in  the  adminstration  of  the  customs  laws,  and  ques- 
tions concerning  the  application  of  the  customs  laws  are  de- 
termined in  Turkish  courts  in  the  presence  of  the  consular 
dragoman  of  the  foreigner,  whether  he  be  plaintifE  or  de- 
fendant. There  was,  indeed,  no  suggestion  in  the  commer- 
cial treaties  of  1861-2  of  derogations  from  the  territorial 
sovereignty  of  the  Porte.  They  were  in  fact  the  first  im- 
portant treaties  made  by  Turkey  which  contained  no  stipu- 
lation as  to  extraterritorial  privileges.  The  commercial 
treaty  of  1890  with  Germany  is  likewise  of  the  same  general 
tenor  as  ordinary  commercial  treaties  between  western 
powers. 

The  prevailing  Turkish  tariff  on  imports  is  eight  per  cent.    Prohi- 
and  on  exports,  one  per  cent. ;  and  it  is  provided  that  no  ad-   internal 
ditional  taxes  shall  be  placed  upon  goods  in  transit  to  or   foreign 
from  the  interior.     By  the  treaty  of  August  16,  1838  with 
Great  Britain  all   such  taxes  imposed  by  local  governors 
under  the  form  of  granting  teskerehs  or  permits  for  the 
transfer  of  goods  through  their  provinces  were  abolished. 

In  1882,  when  Turkey  placed  an  internal  revenue  tax 
on  imported  alcohol  with  the  object  of  making  the  tax  on 
the  foreign  product  equal  to  the  tax  on  the  native  product, 
the  American  government  regarded  the  proceeding  as  clear- 
ly contrary  to  the  engagements  of  the  treaties.^  At  the 
same  time  the  government  of  Turkey,  having  granted  a 
warehouse  monopoly  which  controlled  the  storage  of 
petroleum  and  made  excessive  charges  therefor,  the  United 

»  For.  Rel.  1883,  p.  819,  832;  see  also  1882,  p.  491,  497,  499,  504,  507. 


goods 


136 


EXEMPTIONS   FROM   TAXES 


Bzemp- 
tions  of 
mission 
s'chools 
<from  Im- 
port 
duties 


Turkish 
real  es- 
tate 
taxes 


Turkish 
tax  on 
absentees 


States  denied  the  right  of  Turkey  to  set  up  this  warehouse 
monopoly  and  declared  that  Turkey  was  liable  to  refund  the 
dues  collected  under  it.^ 

Under  the  exemptions  from  customs  dues  granted  in  the 
capitulations  to  foreign  religious  societies  in  Turkey,  the 
American  missionary  schools,  hospitals  and  other  benevo- 
lent institutions  have  been  very  largely  free  from  payment 
of  duties  upon  materials  imported  for  their  use.  For  some 
years  previous  to  1888  there  were  increasing  restrictions 
placed  upon  this  privilege,  and  in  that  year  at  the  sugges- 
tion of  the  American  minister,  Mr.  Straus,  the  foreign 
embassies  at  Constantinople  called  the  attention  of  the 
Porte  to  the  desirability  of  continuing  the  franchise  upon 
a  certain  amount  for  each  institution  annually.^ 

In  1878  foreigners  holding  real  estate  in  Turkey  were 
required  to  pay  two  years'  taxes  in  advance,  with  the  dis- 
tinct understanding  that  account  should  be  kept  of  the 
sums  so  paid  and  that  they  should  be  credited  on  the  tax- 
lists  of  those  years.  This  agreement  on  the  part  of  the 
government  was  not  kept  and  the  taxes  had  to  be  paid  over 
again.  A  second  requirement  of  this  kind  was  made  in  1881. 
The  American  minister  having  requested  special  instruc- 
tions, the  Department  of  State  authorized  him  to  join  with 
the  representatives  of  other  powers  in  a  protest  against  the 
measure.^ 

Complaints  were  made  in  1885  that  taxes  upon  schools 
were  imposed  by  both  the  imperial  and  the  local  govern- 
ments, but  the  United  States  took  the  view  that,  if  such 
taxes  were  uniform,  they  could  not  be  regarded  as  unfair.* 

A  naturalized  citizen  of  Armenian  origin,  residing  in 
Boston,  complained  that  in  his  absence  from  Turkey  his 
relatives  were  being  compelled  to  pay  the  personal  taxes 
which  would  have  been  imposed  upon  himself  had  he  re- 


>For.    Rel.    1883,    p.    880;    see    also    1882,    p.    509,    520;    1883,    p.    822,    829, 
834,  842,  849,  874,  877,  878,  887. 
»  For.  Rel.  1888,  pt.  2,  p.  1562,  1568. 
»  For.   Rel.  1881,  p.  1176,   1183. 
*For.  Rel.  1885,  p.  872,  878. 


CHINESE   MARITIME  CUSTOMS  137 

mained  in  Turkey.    Representation  was  made  by  the  United 

States  against  the  exaction,  and  the  Turkish  government 

relieved  him  from  further  taxation.  ^ 

In  1853,  when  the  walled  city  of  Shanghai,  south  of  the   The  chi- 

nese  Im- 
f  oreign  settlements,  was  captured  by  the  Taiping  rebels,  the   penai 

Chinese  imperial  authorities  requested  the  consuls  of  Great  customs 
Britain,  France  and  the  United  States  to  superintend  the 
collection  of  customs  at  that  port.  The  plan  proved  so  satis- 
factory that  under  the  treaties  of  1858  it  was  extended  to  all 
of  the  open  ports.  The  office  of  Inspector-General  of  Mari- 
time Customs  was  then  created,  and  since  1862  it  has  been 
administered  with  great  ability  by  Sir  Robert  Hart.-  A 
large  number  of  men  in  the  service  are  foreigners.  There 
has  always  been  a  separate  native  customs  administration 
under  sole  Chinese  control  for  the  collection  of  duties  pay- 
able upon  goods  carried  in  native  junks.^ 

By  the  rules  agreed  upon  between  Great  Britain  and  Rules  of 
China  on  May  31,  1868,*  and  adhered  to  by  other  govern- 
ments, controversies  arising  in  the  collection  of  customs 
dues  on  foreign  goods  were  to  be  investigated  by  an 
official  of  the  customs  service  and  the  consul  of  the  nation- 
ality of  the  importer  of  the  goods.  If  these  two  officials 
could  not  agree  upon  a  decision,  they  were  to  refer  it  to  their 
higher  authorities  in  Peking. 

The  rules  of  1868  appear  to  have  been  in  part  modified    Rges  of 
by  those  agreed  upon  on  September  6,  1902,  by  the  repre- 
sentatives of   China  and  the   treaty  powers.''     Under  the 
rules  of  1902,  disputes  arising  as  to  the  valuation  or  classi- 
fication of  goods,  which  may  not  have  been  sold  when  the 

iFor.  Rel.  1885,  p    848,  854,  855,  860. 

*  A  report  by  the  American  minister  upon  the  administration  of  the 
Imperial  maritime  customs  service  and  mentioning  the  honors  be- 
stowed upon  Sir  Robert  Hart  by  the  British  and  Chinese  governments 
Is  given  In  For.  Rel.  1893,  p.  235. 

3  The  British  and  American  treaties  of  1902-3  provide  that  members 
of  the  imperial  maritime  customs  staff  shall  be  appointed  to  have 
general  supervision  of  the  native  customs  in  each  province. 

*  Mayers,  Chinese  Treaties,  Shanghai,  1897,  p.  230;  see  also  Dipl.  Corr. 
1868,   pt.   1,   p.  521,   571;   and  infra.   Appendix  V-1. 

»For.    Rel.   1903,   p.   117;   see  also  Appendix  V-2. 


138 


CUSTOMS  RULES  OF  1902 


■Liabili- 
ties un- 
der tlie 
treaties 
of  1858 
and  1903 


The  In- 
land tax, 
llkin 


application  to  pay  duties  is  made,  are  to  be  referred  to  a 
board  of  arbitration  composed  of  three  members,  namely,  an 
ofl&cial  of  the  customs,  a  merchant  selected  by  the  consul  of 
the  importer  and  a  merchant  of  different  nationality  from 
that  of  the  importer  selected  by  the  senior  consul.  Ques- 
tions regarding  procedure  are  to  be  decided  by  a  majority  of 
the  board.  If  the  undervaluation  is  less  than  seven  and  a 
half  per  cent.,  the  expenses  of  the  arbitration  are  to  be  paid 
by  the  customs  authorities;  if  more,  by  the  importer;  and  if 
the  undervaluation  exceeds  by  twenty  per  cent,  or  upwards 
the  amount  asserted  by  the  importer  to  be  due,  an  additional 
duty  of  four  times  the  amount  sought  to  be  evaded  may  be 
exacted. 

When  the  infraction  of  customs  regulations  is  punishable 
by  fine,  the  imposition  of  the  fine  is  within  the  sole  authority 
of  the  consular  court  of  the  accused,  but  more  serious 
offenses,  such  as  trading  in  prohibited  articles  or  smuggling, 
are  punishable  by  the  Chinese  government  to  the  extent  of 
confiscating  the  goods,  or  the  ship,  or  both.  ^ 

On  the  other  hand,  if  illegal  action  on  the  part  of  the 
native  customs  service  is  complained  of  by  a  citizen  of  the 
United  States,  it  is  to  be  investigated  by  an  officer  of  the 
Chinese  government  of  sufficiently  high  rank,  in  conjunc- 
tion with  an  American  officer  and  an  officer  of  the  Imperial 
Maritime  Customs,  each  of  sufficient  standing;  and  if  the 
complaint  is  well  founded  and  loss  has  been  incurred,  due 
compensation  is  to  be  paid.  The  high  provincial  officials  are 
held  responsible  for  the  punishment  and  removal  of  the 
officer  guilty  of  the  illegal  action.  If  the  complaint  is 
shown  to  be  frivolous  or  malicious,  the  complainant  is  to  be 
held  responsible  for  the  expenses  of  the  investigation.  ^ 

For  many  years  the  most  burdensome  tax  upon  native  and 
foreign  trade  in  China  was  an  internal  tax  called  likin,  which 
was  collected  along  the  trade  routes  in  the  interior.  It  was 
nominally   a   specific   tax,   but,   being   farmed   out   in   the 


» Articles    XIV,    XXI,    Treaty    of    June    18,    1858;    Mayers,    Chinese 
Treaties,  ed.   1897,   p.   88,   90. 

'Article  IV,  Treaty  of  October  8,  1903;  For.  Rel.  1903,  p.  91-4. 


ABOLITION  OF  THE  LIKIN  139 

various  provinces,  it  became  so  irregular  and  excessive  as  to 
be  almost  prohibitory  of  trade.  For  instance,  in  1885,  im- 
ported kerosene  oil,  paying  a  duty  of  five  cents  a  case,  was 
taxed  forty-two  and  a  half  cents  likin  dues  in  the  city  of 
Canton  alone,  and  when  taken  into  the  interior,  was  taxed 
likin  at  every  successive  barrier.  Upon  the  normal  annual 
importation  of  500,000  cases  the  likin  collector  at  Canton 
alone  received  approximately  $212,000,  though  he  remitted 
to  the  central  government  only  $31,000  in  payment  for  the 
privilege  of  farming  the  tax.  The  provincial  authorities 
were  very  averse  to  any  reduction  or  improved  regulation  of 
likin.  The  central  government  had  granted  for  foreign 
goods,  whether  imports  or  exports,  exemption  from  inland 
taxation  upon  the  payment  of  a  transit  duty  not  to  exceed 
fifty  per  cent,  of  the  export  or  import  duty,  and  goods  upon 
which  the  transit  duty  had  been  paid  were  to  be  protected 
by  what  was  known  as  a  transit  pass.  But  in  practice  the 
transit  pass  did  not  protect  goods  from  the  inland  taxes,  and 
the  Chinese  government,  for  its  part,  justly  complained  that 
unscrupulous  foreigners  allowed  the  Chinese  to  use  their 
transit  pass  privileges  to  evade  the  taxes.  The  difficulties 
over  the  likin  were  a  never-ending  subject  of  diplomatic 
negotiation  at  Peking. 

In  the  British,  Japanese  and  American  treaties  of  1902-3  Aboii- 
with  China  it  is  provided  that  the  levying  of  likin  and  the  iikin 
all  other  transit  dues  shall  be  abandoned,  and  that  in  place 
of  all  such  imposts  foreign  imported  goods  shall  pay  a  surtax 
in  addition  to  the  customs  duties  amounting  to  one  and  one- 
half  times  those  duties,  and  that  native  produce  consigned 
for  export  shall  pay  a  surtax  which,  together  with  the  ex- 
port duty,  shall  not  amount  to  more  than  seven  and  one-half 
per  cent,  ad  valorem.  When  these  stipulations  shall  have 
been  accepted  by  the  powers  having  treaties  with  China,  a 
date  is  to  be  agreed  upon  when  they  are  to  take  effect  and 
an  imperial  edict  is  to  be  issued  setting  forth  the  abolition 
of  likin  taxation,  transit  dues  and  all  other  internal  taxation 
on  foreign  goods,  establishing  the  surtax  system,  and  en- 
joining upon  all  provincial  officials  the  strict  observance  of 


140 


TAX  ON  MANUFACTURES 


Tax  on 
manu- 
factures 
by  for- 
<«lgners 


these  provisions  of  the  treaties  at  the  peril  of  severe  punish- 
ment and  removal  from  office. 

It  was  provided  by  the  treaty  of  April  17,  1895,  between 
China  and  Japan,  that  Japanese  subjects  should  be  per- 
mitted to  engage  freely  in  manufactures  in  the  open  ports 
of  China  and  that  the  products  of  such  manufactures 
should  be  upon  the  same  footing  and  enjoy  the  same  privi- 
leges and  exemptions  as  merchandise  imported  into  China. 
Although  Japan,  by  the  treaty  of  July  21,  1896,  surrendered 
the  privilege  of  its  subjects  of  exemption  from  taxation  on 
articles  manufactured  in  China,  the  foreign  owners  of  cotton 
mills  at  Shanghai  claimed  a  similar  exemption  under  the 
most-favored-nation  clause,  holding  that  their  mills  had 
been  established  before  the  annulment  of  the  concession  to 
Japan.  But  the  American  government  declined  to  support 
this  claim.  ^  The  treaty  of  1903  between  the  United  States 
and  China  provides,  in  its  sixth  article,  that  all  products  of 
a  foreign  type  manufactured  by  foreigners  in  China  with 
the  use  of  machinery  shall  be  taxed  equally  with  the  same 
class  of  manufactured  products  similarly  made  by  Chinese, 
but  that  there  shall  be  certain  rebates  of  duties  paid  on  im- 
ported materials  used  in  the  manufactured  articles,  and  free- 
dom from  export  duty,  coast-trade  duty  and  export  surtax. 


Privi- 
leges 
specified 
in  the 
treaties 


VII  —  COMMERCIAL   PRIVILEGES 

The  later  treaties  with  oriental  countries,  when  compared 
with  the  earlier,  are  found  to  contain  much  ampler  pro- 
visions than  the  latter  as  to  the  rights  and  obligations  of 
foreigners  in  the  exercise  of  purely  commercial  privileges. 
For  example,  the  recent  treaties  with  China,  in  addition  to 
their  long  and  explicit  provisions  relating  to  the  maritime 
customs,  stipulate  that  measures  shall  be  taken  to  protect 
trade-marks,  patents  and  copyrights,  to  improve  the  national 


1  For.   Rel.   1897,   p. 


ORIENTAL  COMMERCIAL  LAWS  141 

system  of  coinage,  to  revise  the  mining  regulations,  to  re- 
move obstructions  to  shipping  from  the  harbor  of  Canton 
and  to  facilitate  navigation  of  the  Yangtse  Eiver  and  other 
inland  waters.  While  no  single  treaty  with  Turkey  discloses 
the  extent  to  which  Turkish  law  relating  to  commerce  has 
been  revised  under  the  urgent  influence  of  foreign  powers,  it 
is  well  known  that  one  of  the  principal  results  of  the  war  of 
1854-6  was  the  codification  of  Turkish  law,  including  the 
making  of  a  code  of  commerce  after  the  model  of  the 
French  code;  and  while  no  facts  of  European  history  of  the 
past  fifty  years  are  more  conspicuous  than  the  continuous 
insistence  of  the  powers  upon  political  reforms  in  Turkey, 
the  diplomatic  correspondence  shows  an  almost  equal  in- 
sistence upon  administrative  reforms  protective  of  foreign 
commercial  interests  in  that  country.  In  commercial  legis- 
lation China  is  still  only  at  the  beginning;  but  in  view  of  the 
readiness  of  European  and  American  capitalists  to  engage 
in  the  development  of  the  natural  resources,  the  manufac- 
tures and  the  internal  trade  of  China,  so  far  as  they 
may  be  assured  of  adequate  protection  in  their  operations, 
the  necessity  and  advantage  of  expanding  and  improving 
Chinese  commercial  law  is  evident.  ^ 

Until  very  recently  the  only  action  which  appears  to  have  Chinese 

iGfirisls." 

been  taken  by  the  government  of  China,  in  addition  to  the  tion  in 
stipulations  of  the  treaties,  for  the  control  of  commercial  of  regu- 
and  industrial  enterprises  in  which  foreigners  were  per- 
mitted to  participate,  was  in  the  regulation  of  the  maritime 
customs,  of  pilotage,  of  the  navigation  of  the  Yangtse  Eiver, 
and  of  the  inland  freight  traffic.  In  1898,  the  rules  of  1863 
as  to  the  navigation  of  the  Yangtse  Eiver  were  revised,  rules 

*  An  exceedingy  valuable  report  upon  "Commercial  China,"  de- 
scribing the  methods  and  conditions  of  commerce  in  China,  was  pre- 
pared in  the  Bureau  of  Statistics,  Department  of  Commerce  and 
Labor,  and  published  in  the  Monthly  Summary  of  Commerce  and 
Finance  of  the  United  States,  January,  1904,  Ho.  Doc.  15,  pt.  7,  58th 
Cong.,    2d    Sess. 

Excellent  brief  reports  upon  commercial  conditions  in  Turkey  are 
found  in  Commercial  Relations  of  the  United  States,  1895-6,  vol.  II, 
p.  501;  1901,  vol.  II,  p.  758;  1902,  vol.  II.  p.  752.  For  a  map  of  the  pro- 
posed railroad  from  Central  Asia  Minor  to  the  Persian  Gulf,  see  Con- 
sular Reports,  1899,  No.  235. 


lations 


142  JOINT-STOCK  COMPANIES 

for  the  navigation  of  other  inland  waters  were  established, 
and  regulations  were  also  promulgated  under  which  foreign 
capital  might  be  used  with  Chinese  in  railway  and  mining 
enterprises.  In  1899  the  Chinese  legation  in  Washington 
communicated  to  the  Department  of  State  a  translation  of  a 
dispatch  from  the  Tsung-li  Yamen  at  Peking,  prescribing 
the  course  necessary  to  be  taken  by  foreign  capitalists  in 
loaning  money  to  subjects  of  China  for  the  prosecution  of 
commercial  enterprises.  These  later  regulations  have  a 
closer  resemblance  to  acts  of  legislation  than  the  earlier,  but 
the  'meagerness  of  their  provisions  as  compared  with  the 
legislation  of  western  states  upon  similar  matters  indicates 
the  present  insuflSciency  of  commercial  law  in  China. 
Joint-  The  treaty  of  September  5,  1902,  between  Great  Britain 

compa-       and  China,  Article  IV,  referring  to  the  fact  that,  although 
°  ^^  questions  have  arisen  concerning  the  right  of  Chinese  sub- 

jects to  invest  money  in  non-Chinese  enterprises  and  com- 
panies, large  sums  of  Chinese  capital  have  been  so  invested, 
stipulates  that  China  shall  recognize  the  legality  of  all  such 
investments,  past,  present  and  future;  that  Chinese  subjects, 
who  have  or  may  become  shareholders  in  any  British  joint- 
stock  company,  shall  be  held  to  have  accepted  the  charter  of 
incorporation,  or  memorandum  and  articles  of  association, 
as  well  as  the  regulations  framed  thereunder  as  interpreted 
by  British  courts,  and  that  the  Chinese  courts  shall  enforce 
compliance  therewith  if  a  suit  to  that  effect  be  entered,  pro- 
vided always  that  the  liability  of  the  Chinese  shall  not  be 
other  or  greater  than  that  of  British  shareholders  in  the 
same  company.  The  provisions  of  this  article  are  made 
reciprocal.  They  are  not  to  apply  to  cases  which  have  al- 
ready been  before  the  courts  and  have  been  dismissed. 
Rights  of  For  some  twenty  years  before  the  treaty  of  1895,  between 
fuctur-  China  and  Japan,  the  question  of  the  right  of  foreigners 
China  to  engage  in  manufactures  in  China  was  much  discussed. 
The  Chinese  government  contended  that  the  treaties  had 
granted  only  the  right  to  employ  Chinese  workmen  at  small 
pieces  of  work  and  without  machinery.^    But  the  treaty  with 

»For   Rel.    1882,    p.   U7,    134. 


RAILWAYS  AND  MINES  143 

Japan,  as  we  have  already  seen,  freely  granted  the  right  to 
import  machinery  and  use  it  in  manufactures  at  the  treaty- 
ports.  In  connection  with  these  new  privileges  the  Japa- 
nese treaty  and  the  treaties  of  190^-3  do  not  stipulate 
any  additional  rules  of  jurisdiction,  yet,  inasmuch  as  the 
new  privileges  are  inducing  foreigners  to  undertake  enter- 
prises of  all  kinds  and  extensively  increasing  their  business 
relations  with  the  Chinese  and  with  other  foreigners,  it  is 
beyond  doubt  that  the  activity  of  the  consular  courts  and 
the  Chinese  courts  will  be  largely  increased. 

In  the  several  railway  and  mining  concessions  which  the  Railway 
Chinese  government  has  granted,  as  well  as  in  the  contracts  mininff 
into  which  it  has  entered  in  recent  years,  the  methods  of  aions 
financing  these  enterprises,  of  acquiring  rights  of  way,  ac- 
quiring lands  and  materials  of  construction,  and  of  organ- 
izing the  management,  are  expressly  defined.  China  under- 
takes to  protect  the  foreign  as  well  as  the  native  capital  in- 
vested, and  at  the  same  time  reserves  control  of  the  enter- 
prises. The  position  of  the  Chinese  government  in  these 
concessions  and  contracts  is  so  important  that  any  con- 
troversy as  to  the  main  points  would  no  doubt  be  reserved 
for  diplomatic  negotiation,  whereas  the  settlement  of  minor 
difficulties  would,  with  equal  reason,  be  left  to  the  methods 
established  by  the  existing  treaties.  The  Chinese  govern- 
ment exercises  authority  in  the  construction  and  opera- 
tion of  the  railways  and  mines  through  a  bureau  of  con- 
trol established  by  imperial  edict.^  The  foreigners  engaged 
in  the  railway  service  may  be  assumed  to  have  a  standing 
analagous  to  that  of  foreigners  in  the  Imperial  Maritime 
Customs,  that  is,  to  be  subject  to  the  orders  of  a  director- 
general  of  railways,  being  dismissed  from  the  service  in  case 
of  criminal  offense,  and  being  subject  to  indictment  in  the 
courts  of  their  respective  consuls.- 

There  appears  to  have  been  no  specific  definition  of  the 
attitude  of  the  United  States  toward  these  large  financial 


•  Rockhill,  Treaties  Relating  to  China  and  Korea,  p.  249. 
'  Supra,  p.  86. 


144 


ANTI-MQNOPOLY  POLICY 


Non-pol- 
itical in- 
terest of 
the 

United 
States    In 
commer- 
cial   pro- 
jects 


Effect  of 
the  'open 
door' 
policy 


Monop- 
olies In 
China 


undertakings  of  its  citizens  in  which  they  have  become 
parties  to  contracts  with  the  government  of  China.  The 
Chinese  government  desired  that  its  railway  concessions 
should  be  taken  by  companies  of  different  nationalities,  and 
the  already  existing  'spheres  of  influence'  of  the  various 
European  powers  determined  to  a  large  extent  how  the  con- 
cessions should  be  apportioned.  In  granting  to  an  American 
company  the  concession  for  the  Hankow-Canton  railway, 
which  is  the  main  line  through  central  China,  the  imperial 
authorities  no  doubt  took  into  consideration  the  long-stand- 
ing policy  of  the  United  States,  under  which  it  has  desired 
for  its  own  citizens  no  general  commercial  privileges  of  an 
exclusive  character.  American  citizens  desirous  of  obtain- 
ing concessions  have  received  the  support  of  their  ministers 
and  consuls,  but  not  to  such  an  extent  as  to  invest  their 
enterprises  with  a  political  significance.^ 

The  'open  door'  commercial  policy  has  a  profound  effect 
upon  extraterritorial  rights  in  China,  in  that  it  maintains  a 
general  uniformity  of  eom-mercial  rights  of  foreigners 
throughout  the  empire,  whereas  the  adverse  policy  of  de- 
manding special  commercial  privileges  would  greatly  in- 
crease the  difficulties  of  administering  justice  in  consular 
courts. 

Consistently  with  this  policy,  the  United  States  has  op- 
posed the  granting  of  any  monopoly  to  a  foriegn  country  or 
corporation  that  would  exclude  American  citizens  from 
entering  the  same  form  of  enterprise  on  equal  terms  and 
with  fair  competition.  In  1881,  when  an  agreement  was 
drafted  by  which  the  Chinese  government  was  to  concede  to 
the  Danish  Great  Northern  Telegraph  Company  the  ex- 
elusive  right  to  construct  overland  telegraph  lines  from  the 
Siberian  frontier  and  throughout  China  as  well  as  to  lay 
submarine  cables  touching  the  coasts  of  China,  the  United 
States  protested  against  the  proposed  concession  as  being  in- 
harmonious with  the  equal  commercial  rights  of  its  citizens 


» For.    Rel.    1897,    p.    56.     This    concession    reverted    to    the    Chinese 
government  by  sale  in  1905. 


COMMERCIAL   PRIVILEGES    IN    TURKEY  145 

under  the  treaties,  and  the  concession  was  radically  modified 
and  limited.^ 

The  granting  of  private  monopolies  of  warehouses  for  the   JJo^^oP; 
compulsory  storage  of  petroleum  in  Turkey,  in  1882  and   Turkey 
1889,  was  regarded  by  the  governments  of  the  United  States 
and  of  Eussia  as  a  virtual  doubling  of  the  import  duty 
agreed  upon  in  the  treaties  of  1861-2,  and  upon  this  protest 
the  warehouse  concession  was  revoked.^ 

In  1887  the  Turkish  government  issued  a  regulation  for-  Foreign 

.  ,    ,      .     joint- 

bidding  agencies  of  foreign  joint-stock  companies  to  do  busi-    stock 

ness  in  the  Ottoman  dominions  without  having  previously  nies  in 
obtained  a  Turkish  permit.  The  foreign  ministers  at  Con- 
stantinople, holding  that  this  regulation  constituted  an  en- 
croachment on  the  liberty  of  commerce  guaranteed  by  the 
treaties,  informed  the  Porte  that  they  could  not  assist  in  the 
enforcement  of  it.^  The  Turkish  government,  however, 
does  not  appear  to  have  modified  the  regulation.  In  1901, 
the  New  York  Life  Insurance  Company,  even  though  it  had 
fully  complied  with  the  regulations,  was  placed  with  other 
foreign  life  insurance  companies  under  such  additional 
restrictions  as  almost  to  prohibit  it  from  doing  business  in 
Turkey.  The  principal  restrictions  were  that  its  agents 
were  prevented  from  travelling  in  the  interior  and  its  com- 
munications through  the  Turkish  mails  interfered  with.  It 
appears  that  there  were  special  difficulties  caused  by  the 
efforts  of  the  central  government  to  prevent  native  agents 
of  the  companies  from  using  their  business  connections  for 
spreading  revolutionary  ideas.* 

There   have  been  numerous   instances   of   governmental   Postal 
interference  with  the  mails  addressed  to  foreigners  m  Tur-   leges 
key.     In  1893  Turkish  officials  claimed  the  right  to  open 
letters  and  examine  them  at  any  time  when  there  was  dis- 
turbance in  the  locality  to  which  or  from  which  they  were 
sent.    The  Department  of  State  expressed  earnest  solicitude 


»For.   Rel.J881^jB,^lllLl^2,_P-  HB. 

^TDTilTer  1889,  p.  710;  see  aiso~i8l3;  p.  880;  1884,  p.  557,  562. 

8  For.   Rel.  1888,   pt.  2,   p.  1592. 

*  For.   Rel.  1902,   p.   1026. 


146  REDRESS  AGAIN'ST  DEBTORS 

that  the  personal  rights  of  American  citizens  in  regard  to 
their  private  correspondence  should  be  respected.^  There 
is  an  extensive  international  postal  service  in  Turkey,  inde- 
pendent of  the  native  service. 

Several  treaty  powers  maintain  their  own  postal  service  in 
the  open  ports  of  China.  The  United  States  has  not  done 
so,  because  it  has  regarded  the  postal  service  maintained  by 
China  under  direction  of  the  Imperial  Maritime  Customs  as 
satisfactory  and  has  desired  to  encourage  the  extension  of 
this  system.  ^ 
CoUec-  In  connection  with  the  collection  of  debts  through  actions 

debts  at  law  in  consular  or  native  courts,  it  is  usually  stipulated 
that  neither  government  shall  be  held  responsible  for  the 
debts  or  the  fraudulent  acts  of  its  citizens  or  subjects.^  The 
United  States  statutes  make  no  special  provision  for  actions 
for  the  recovery  of  debts,  but  the  consular  court  regulations 
for  Turkey  and  for  China  contain  provisions  under  which 
process  of  attachment  of  an  American  defendant's  property 
or  of  arrest  of  his  person  may  be  issued,  as  well  as  other  pro- 
visions for  obtaining  redress  against  debtors.*  The  Ameri- 
can consul-general  at  Constantinople,  Mr.  C.  M.  Dickin- 
son, reported  in  1898  that  there  was  very  little  dilRculty  in 
collecting  debts  in  Turkey;  "nearly  all  the  merchants  in 
Turkey,^'  said  he,  "are  Greeks,  Italians,  English,  Germans, 
Austrians,  and  French,"  and  "a  resort  to  the  Turkish  courts 
is  scarcely  ever  necessary."  ^  The  law  of  bankruptcy  under 
American  foreign  jurisdiction  is  wholly  undeveloped,  and  it 
appears  also  to  have  been  but  little  developed  under  the 
British  system.^ 

In  1893    the    government    of    Persia    complained    that 
foreigners  had  accepted  claims  due  from  one  Persian  subject 


»  For.  Rel.  1893,  p.  597,  623. 
•For.  Rel.  1902.  p.  222,  225. 

'United   States   and   China,    July  3,   1844,    Article   XVI;   June   18,    1858, 
Article  XXIV;  Capitulations  of  1740,  Articles  22.  23,  53,  66,  69. 

*  Sen.  Misc.  Doc.  89,  p.  70,  103,   (vol.  1)  47th  Cong.,  1st  Sess. 

»  Commercial  Relations  of  the  United  States,  1898,  vol.  II,  p.  605. 

•  Piggott,     Exterritoriality,     p.     125-32;     Hall,     Foreign    Jurisdiction, 
p.   186-8. 


FINANCIAL  CONDITIONS  147 

to  another  in  payment  of  debts  due  to  themselves,  and  were   Assign- 
seeking  the  aid  of  their  legations  to  collect  such  claims.    The  claims  to 
practice  does  not  appear  to  have  been  resorted  to  by  Ameri-  ers 
cans,  but  when  the  Persian  Foreign  Office  sent  a  circular 
note  to  the  foreign  powers  stating  that  such  transfers  of 
claims  would  be  considered  void,  unless  made  under  the  seal 
of  Persia  and  legalized  in  the  legation,  the  American  minis- 
ter was  instructed  that  the  United  States  "will  never  recog- 
nize an  assignment  of  a  claim  against  a  foreign  country  made 
by  a  citizen  or  subject  of  that  country  to  a  citizen  of  this  for 
the   purpose   of   invoking   diplomatic   aid   in   the   recovery 
thereof.    Still  less  will  it  undertake  to  aid  in  the  recovery  of 
claims  against  subjects  of  foreign  countries  which  originally 
accrued  in  favor  of  their  fellow-subjects  and  have  been  as- 
signed by  the  latter  to  American  citizens."  ^ 

The  heavy  indebtedness  of  both  Turkey  and  China  in  pro-  Finan- 
portion  to  their  taxable  resources  has  been  very  largely  in-  ditions 
curred  through  the  difficulties  those  governments  have  ex- 
perienced in  maintaining  order  within  their  boundaries,  in 
protecting  foreigners  and  foreign  co-mmerce,  and  in  develop- 
ing a  generally  efficient  internal  administration.  The  fact 
that  these  enormous  debts  have  come  into  existence  gives 
very  tangible  evidence  of  the  original  necessity  of  establish- 
ing extraterritorial  privileges  in  those  countries,  and  it  is 
probable  that  so  long  as  they  remain  burdened  with  extra- 
ordinary debts  they  will  continue  to  be  regarded  as  unpre- 
pared for  the  relinquishment  of  extraterritoriality.  The 
condition  of  government  finances  of  course  indicates  the 
strength  or  weakness  of  the  general  administration,  and  in 
China  and  Turkey  it  indicates  the  greater  or  less  degree  to 
which  other  powers  have  been  and  are  obliged  to  secure 
special  protection  for  their  citizens  or  subjects  and  their 
commerce  in  those  countries. 

Nearly  all  of  the  claims  which  have  been  preferred  by  Claims 

.  against 

American  citizens  against  oriental  governments  have  arisen  oriental 

govern- 
out  of  injuries  caused  to  person  or  property  through  failure  menta 

»  For,    Rel.   1894,    p.   484. 


148  CLAIMiS  AGAINST  CHINA 

to  give  the  protection  guaranteed  by  the  treaties.  ^  It 
would  be  obviously  impossible  under  conditions  Avhich  still 
exist  in  those  countries  to  obtain  redress  through  ordinary 
legal  actions  in  the  native  courts.  ^  Minor  diiiiculties,  it  is 
true,  have  been  occasionally  settled  by  the  local  authorities,^ 
but  the  claims  arising  from  serious  outbreaks  of  violence 
have  necessarily  been  taken  up  by  the  diplomatic  represen- 
tatives of  the  United  States  and  the  oriental  governments 
concerned.  *  The  validity  of  the  claims  has  then  been  usual- 
ly determined  in  the  executive  departments  of  the  two  gov- 
ernments. 
Claims  A  number  of  claims  against  China,  including  some  that 

against  °  .  ,  .   , 

China  arose  out  of  the  war  between  China  and  Great  Britain,  which 
began  in  1856,  were  made  the  subject  of  an  indemnity  con- 
vention, November  8,  1858.  The  United  States  appointed  a 
special  commission  to  decide  upon  the  merits  of  the  claims, 
and  about  two-thirds  of  the  total  amount  of  the  indemnity 
was  awarded  to  claimants.  In  1885  the  remainder,  amount- 
ing with  interest  to  |453,400.90,  was  turned  over  to  the 
Chinese  minister  at  Washington.^ 

The  claims  against  China,  growing  out  of  the  anti-foreign 
uprisings  of  1900,  embraced  the  losses  suffered  by  the  several 
foreign  governments  by  reason  of  the  attack  on  the  legations 
in  Peking,  as  well  as  the  expenses  of  the  expeditions  sent  out 
for    the    relief    of    the    legations    and    the    protection    of 

1  The  claim  of  Dr.  M.  A.  Cheek  against  the  King  of  Siam  was  con- 
tractual; it  was  settled  by  arbitration;  infra,  p.  162.  Another  con- 
tractual claim  was  that  of  the  "Ward  estate"  against  China;  it  was 
arbitrated,  but  the  award  appears  not  to  have  been  paid;  For.  Rel. 
1888,  pt.  1,  p.  199-218. 

=  Although  the  United  States  has  not  admitted  that  redress  for  In- 
juries b-"^  mob  violence  within  its  borders  might  be  obtained  in  any 
other  way  than  through  the  courts,  it  has,  out  of  clemency,  paid  in- 
demnities for  such  injuries  in  certain  cases  in  which  it  would  have 
been  practically  impossible  to  obtain  justice  in  the  courts  on  ac- 
count of  local  prejudice;  For.  Rel.  1887,  p.  169;  see  also  For.  Rel.  1886,  p. 
101-56. 

•For.  Rel.  1871,  p.  75;  see  also  For.  Rel.  1890,  p.  147;  1891,  p.  354. 

*  The  American  diplomatic  representatives  are  directed,  except  In 
certain  extraordinary  cases,  to  seek  instructions  from  the  Depart- 
ment of  State  before  presenting  any  claim  for  collection;  For.  Rel. 
1896,  p.  46. 

'  For.  Rel.  1885,  p.  182;  1886,  p.  140. 


MR.  HAY'S  TELEGRAM  REGARDING  CHINA  149 

foreigners.  The  claims  of  individuals  for  personal  injuries 
and  losses  of  property  were  not  itemized  in  the  negotiations, 
but  were  left  to  be  settled  by  the  various  foreign  govern- 
ments out  of  their  respective  shares  of  the  lump  sum  of 
1333,000,000,  which  China  agreed  to  pay.  The  United  States 
considered  this  enormous  sum  to  be  far  in  excess  of  what  was 
justly  due,  but  agreed  to  it,  rather  than  prolong  the  occupa- 
tion of  Chinese  territory  by  the  expeditionary  forces  and 
thus  cause  the  claims  to  increase  indefinitely. 

The  attitude  of  the  United  States  in  entering  upon  con-  The 
current  action  with  the  other  powers  had  been  defined  in  the  door" 

T-   ,       policy 

circular  telegram  of  the  Secretary  of  State,  John  Hay,  July 
3,  1900,  which  read  in  part  as  follows: 

We  adhere  to  the  policy  initiated  by  us  in  1857  of  peace  with 
the  Chinese  nation,  of  furtherance  of  lawful  commerce,  and  of 
protection  of  lives  and  property  of  our  citizens  by  all  meana 
guaranteed  under  extraterritorial  treaty  rights  and  by  the  law  of 
nations.  .  .  .  The  policy  of  the  Government  of  the  United 
States  is  to  seek  a  solution  which  may  bring  about  permanent 
safety  and  peace  to  China,  preserve  Chinese  territorial  and  ad- 
ministrative entity,  protect  all  rights  guaranteed  to  friendly 
powers  by  treaty  and  international  law,  and  safeguard  for  the 
world  the  principle  of  equal  and  impartial  trade  with  all  parts  of 
the  Chinese  Empire. i 

The  successful  carrying  out  of  this  policy  by  the  American 
commissioner  and  plenipotentiary,  Mr.  W.  W.  Rockhill,  in 
the  long  and  difficult  negotiations  at  Peking,  has  proved  that 
it  commended  itself  to  the  other  powers  interested  and,  while 
adequately  securing  reparation  for  wrongs  done  to  American 
citizens  and  guaranties  for  their  future  protection,  has  eon- 
firmed  the  long-standing  friendship  of  the  United  States 
and  China.  - 


1  For.  Rel.  1901,  Appendix,  p.  12. 

» The  correspondence  Illustrates  in  much  continuity  of  detail  the  suc- 
cessive steps  by  which  the  negotiations  were  consummated;  For.  Rel. 
1901,  Appendix. 


150  THE   TURKISH   INDEMNITIES 

Claims  At  the  time  of  the  Armenian  disturbances  in  Turkey  in 

Turkey  1895,  much  Aoneriean  property  was  destroyed.  The  claims 
for  indemnity  were  at  first  resisted  by  the  Porte  on  the 
ground  that  a  government  could  not  be  held  liable  for  losses 
occasioned  by  insurrections  and  that  the  local  authorities 
had  taken  all  the  measures  within  their  power  for  the  pro- 
tection of  the  lives  and  property  of  Americans.  The  United 
States  produced  evidence  to  show  the  negligence  and  con- 
nivance of  Turkish  officials,  and  renewed  its  claims.  ^  There 
were  also  claims  arising  out  of  the  same  disturbances  pre- 
ferred by  France,  Italy  and  Great  Britain,  and  these  claims, 
like  the  American,  were  held  by  the  Turkish  government  not 
to  be  well  grounded.  No  suggestion  of  joint  action  among 
the  powers  in  pressing  these  claims  appears  to  have  been 
made.  In  1898  the  American  minister,  Mr.  Straus,  drew  up 
a  memorandum  of  the  circumstances  under  which  the 
United  States  itself  had  granted  indemnities  and  by  oral 
presentation  of  the  subject  to  the  Turkish  Minister  of 
Foreign  Affairs,  obtained  his  recommendation  to  the  Council 
of  Ministers  that  the  claims  be  paid.  During  an  audience 
with  the  Sultan,  December  9,  1898,  Mr.  Straus  was  in- 
formed by  His  Imperial  Majesty  that  he  had  directed  the 
settlement  of  the  claims.  The  principle  of  the  American 
demand  was  thus  admitted  by  the  promise  to  pay  which  the 
Sultan  then  made  and  subsequently  repeated  at  various 
times.  The  delay  in  actual  payment  is  assumed  to  have  been 
caused  only  by  the  deplorable  state  of  the  finances  of  the 
empire.^ 

Only  a  few  years  before,  the  Turkish  government  had  paid 
indemnities  for  the  destruction  of  American  property  under 
circumstances  not  unlike  those  of  1895.  The  earlier  claims 
were  far  less  in  amount,  but  the  principles  of  liability  were 
apparently  the  same.' 


'  For.  Rel.  1896,  p.  892,  897;  also  .supra,  p.  116-7. 

» For.    Rel.   1899,   p.   765,   768. 

•For.  Rel.  1892,  p.  583,  593,  594;  1893,  p.  631. 


V 


THE  INTERNATIONAL  TRIBUNALS  OF  EGYPT; 
MIXED    CASES    IN    CHINA 


When  the  parties  to  an  action  in  a  consular  court  are  of  Jf^^/"^® 
different  nationalities  it  is  usual  to  sue  in  the  court  of  the   f^^^- 
defendant's   consul,   hut,   unless   the   case   he   simple,   this  court 
method  may  prove  unsatisfactory. 

There  long  existed  in  Turkey  a  usage  sanctioned,  it  is  he-   Modiflca- 
lieved,  hy  an  exchange  of  notes  by  the  foreign  ministers  in  t^e^ruie 
1820,  which  permitted  that,  in  cases  involving  only  foreign-  key 
ers,  a  mixed  commission  should  he  set  up  for  each  case  as  it 
arose,   and   should   consist   of   two   judges   chosen  hy   the 
legation  of  the  defendant's  nationality  and  one  hy  that  of 
the  plaintiff;  hut  in  1864  the  French  court  of  appeal  at  Aix 
declared  a  commission  so  organized  to  have  no  lawful  juris- 
diction over  Frenchmen.*     Since  then  the  old  rule  of  actor 
sequitur  forum  ret  has  prevailed,  and  sanction  was  impliedly 
given  to  it  in  a  British  Order  in  Council  of  December  12, 
1873.2 

Over  controversies  in  which  a  Turkish  subject  appears 
either  as  plaintiff  or  as  defendant,  the  Turkish  government 


1  Sirey  65,  2,  291,  Pigeon  i;.  Issaverdens  et  Cie.,  November  28,  1864. 

An  Order  In  Council  of  January  23,  1863.  Art.  218-37,  not  printed  in 
the  State  Papers,  Is  said  to  have  sanctioned  this  form  of  jurisdiction 
in  cases  brought  against  British  subjects;  see  F6raud-Giraud,  Juridic- 
tion  francaise,  vol.  2,  p.  255;  see  also  Brit,  and  For.  State  Papers,  vol. 
50,  p.  676,  Art.  LXIII-V;  see  also  Salem,  Les  strangers  devant  les  tri- 
bunaux  consulaires  et  nationaux  en  Turquie;  Jour,  du  droit  internat. 
iprivg,    1891,    p.    414. 

'  Brit,  and  For.  State  Papers,  vol.  63,  p.  78,  Sec.  81-5. 

The  United  States  Consular  Regulations  of  1896,  Par.  620,  state 
that  a  usage  is  believed  to  exist  under  which  'foreign  Christians'  are 
tried  before    'mixed   tribunals.'     This   statement  appears   to   refer   to 


152 


MIXED  CASES  IN  TURKEY 


Juris- 

aiction  of 
Turkish 
subjects 
reserved 


The  mix- 
ed tribu- 
nal of 
com- 
merce 


reserves  jurisdiction.  Its  jurisdiction  is  not,  however,  un- 
restricted: the  judge  cannot  hear  the  complaint  unless  the 
contract  be  in  writing  and  sealed  by  a  notary  public;  and 
neither  can  the  trial  proceed  nor  judgment  be  pronounced 
unless  the  consular  dragoman  be  present.  The  provision  of 
the  capitulations  corresponding  to  the  provision  in  the 
American  treaty  of  1830,  that  mixed  cases  of  a  value  of  five 
hundred  piastres  or  more  involving  Turkish  subjects  should 
be  submitted  to  the  Sublime  Porte,  has  fallen  into  desuetude, 
although,  if  occasion  demanded,  it  could  probably  be  used  to 
support  a  claim  of  right  to  bring  a  case  out  of  the  juris- 
diction of  a  lower  or  provincial  court  into  one  within  the 
imanediate  control  of  the  Porte.  It  has  often  occurred  that 
a  Turkish  plaintiff,  knowing  that  the  execution  of  a  judg- 
ment belongs  solely  to  the  consul  of  the  alien  defendant,  has 
taken  his  claim  without  trial  directly  to  the  consul,  thus 
practically  following  the  rule  of  suing  in  the  defendant's 
court  and  unconsciously  tending  to  revive  the  long  forgotten 
assumption  that  consuls  could  be  held  responsible  for  the 
acts  of  their  nationals.  ^ 

The  Turkish  government,  in  its  desire  to  abridge  in  every 
possible  way  the  jurisdiction  of  consuls,  has  done  much  to 
assimilate  principles  of  commercial  law  from  the  law  existing 
in  western  Europe,  and,  under  the  rights  of  jurisdiction 
reserved  to  itself  in  the  capitulations,  it  provided  in  a  decree 
issued  in  1849  and  modified  by  a  second  decree  in  1860,  a 
special  court,  the  tidjaret,^  usually  spoken  of  as  'the  mixed 


the  usage  above  mentioned  as  prevailing  from  1820  to  1864.  According 
to  Mr.  Salem,  who  has  long  practiced  law  at  Salonica,  the  principle 
of  suing  in  the  court  of  the  defendant's  consul  has  been  in  force  since 
1864;  Les  Strangers  devant  les  tribunaux  consulaires  et  nationaux  en 
Turqule,  Jour,  du  droit,  internat.  privfe,  1891,  p.  413-25. 

For  a  summary  of  the  provisions  made  by  the  various  powers  for 
the  trial  of  mixed  cases  in  Turkey,  see  Salem,  Tribunaux  consulaires 
et  nationaux  en  Turquie,  Jour,  du  droit  internat.  priv6,  1891,  p. 
393.   413-25. 

See  also  a  memoire  of  the  Sublime  Porte  published  July  7,  1869,  ad- 
dressed to  the  foreign  legations  and  to  the  provincial  authorities; 
Aristarchi,  Legislation  Ottomane,  vol.  2,  p.  421. 

*  Salem,  Les  Strangers  devant  les  tribunaux  consulaires  et  nationaux 
en  Turquie,  Jour,  du  droit  internat.  prive,  1891,  p.  801-9. 

'  The  full  name  of  the  court  is  Mehkemet  Tidjaret  Muhtelit  Medjlissi. 


TURKISH  COMMBRCIAiL  TRIBUNALS  153 

tribunal  of  commerce/  for  the  trial  of  civil  and  commercial 
cases.  In  this  court  the  foreigner  is  entitled  to  the  attend- 
ance of  two  assessors  or  juges  temporaires  of  his  own  na- 
tionality to  sit  upon  the  bench  with  three  Turkish  judges  or 
juges  perpetuels, one  of  whom  presides.^  This  organization 
of  the  court  does  not  preclude  the  foreigner  from  his  right 
to  the  presence  of  his  consular  dragoman.  The  competence 
of  the  court  extends  to  cases  of  a  value  exceeding  one  thous- 
and piastres.  Cases  of  a  lower  value  are  heard  in  civil  tri- 
bunals composed  of  a  presiding  judge,  chosen  by  the  govern- 
ment, and  two  assessors.  In  localities  nine  or  more  hours 
distant  from  a  consulate  cases  of  a  value  less  than  one  thous- 
and piastres  are  heard  by  the  civil  tribunals  without  the  pres- 
ence of  the  consular  dragoman,  but  with  the  reservation  of 
the  right  of  appeal  to  the  court  of  the  arrondissement,  where 
the  assistance  of  the  dragoman  is  required.    From  the  civil  Appeals 

1         »  •  IT        to    courts 

tribunals  and  the  mixed  tribunals  of  commerce  m  cases  the  in  Con- 
value  of  which  exceeds  five  thousand  piastres,  appeal  lies  to  nopie 
the  first  chamber  of  the  mixed  tribunal  of  commerce  at  Con- 
stantinople or,  if  a  maritime  case,  to  the  maritime  chamber 
of  this  tribunal,  and  the  decisions  of  these  courts  are  final. 

The  law  administered  in  these  Turkish  courts  is  that  of 
the  code  of  commerce  of  1850  with  its  appendix  of  1860,  the 
code  of  commercial  procedure  of  1862,  the  maritime  code  of 
1864,  and  the  civil  code  of  1869.  The  code  of  civil  procedure 
of  1879  has  not,  it  is  believed,  been  accepted  by  the  foreign 
legations  at  Constantinople  as  applicable  to  the  trial  of 
mixed  cases.^ 

It  was  in  Egypt,  about  the  time  of  completing  the  Suez  The 

..."  /SI     -ourts  of 

Canal,  that  the  difficulties  of  jurisdiction  m  mixed  cases  first  Egypt 


1  Gatteschi,  Diritto  pubblico  e  privato  ottomano,  p.  341.  Salem,  Les 
strangers  devant  les  tribunaux  consulalres  et  natlonaux  en  Turquie, 
Jour,  du  droit  internat.  privg,  1891,  p.  795,  797.  Young,  G.,  Second  Secre- 
tary of  the  British  Embassy  at  Constantinople,  Corps  de  Droit  Otto- 
man,  London,   1905,   7  vols. 

2  There  appears  to  have  been  no  continuous  publication  of  reports 
of  cases  tried  in  the  consular  courts  of  any  nationality  in  Turkey. 
Many  notes  upon  important  cases  are  given  in  the  Journal  du  droit 
international  priv6,  and  references  are  there  made  to  Turkish  pub- 
lications. 


154 


ORIGIN  OF  THE  COURTS  IN  EGYPT 


History 
of  estab- 
lishing 
the  inter- 
national 
tribunals 


became  so  serious  as  to  require  the  special  consideration  of 
the  western  powers.  The  cities  of  Alexandria  and  Cairo 
were  extremely  cosmopolitan.  Traders  and  travelers  from 
all  nations  ca-me  to  this  gateway  between  the  continents,  and 
Egypt  was  thought  of  as  more  European  than  Turkish.  In 
1875  the  number  of  consular  courts  in  Egypt,  each  privileged 
to  exercise  jurisdiction  according  to  its  own  national  law, 
was  no  less  than  seventeen,  yet  only  three  or  four  of  the 
powers  most  interested  had  made  adequate  provision  for  the 
administration  of  this  jurisdiction,  and  the  mixed  cases,  in- 
cluding those  to  which  the  government  of  Egypt  was  a  party, 
besides  being  exceedingly  complex,  long  unadjudicated  and 
very  expensive,  had  sometimes  resulted  in  conspicuous  fail- 
ures of  justice. 

The  Sultan  of  Turkey  had  recognized  in  certain  firmans  of 
1841  and  1866  that  his  relation  to  the  Khedive  of  Egjrpt  was 
only  that  of  a  suzerain  to  whom  annual  tribute  was  due  and 
in  whom  there  rested  no  authority  to  regulate  the  internal 
affairs  of  Egypt.  To  these  arrangements  the  principal  gov- 
ernments of  Europe  had  given  their  sanction,  and  they  had 
raised  the  ofl&ce  of  their  chief  representatives  in  Egypt  to 
the  special  grade  of  diplomatic  agent  and  consul-general.^ 

But  the  hopeless  indebtedness  of  the  Khedive's  govern- 
ment was  fast  rendering  the  actual  intervention  of  the 
powers  in  one  form  or  another  unavoidable.  Most  of  the 
debt  was  held  in  France,  and  French  capital  was  invested 
throughout  the  country.  An  able  Egyptian  official,  Nubar 
Pasha,  had  moved  the  French  government  to  consider  the 
advantages  of  reforming  the  judicial  system  and  of  bringing 
about  closer  cooperation  between  the  consular  courts;  but 
the  Franco-Prussian  war  of  1870-1  had  put  an  end  to  this 
movement. 

In  1873,  at  the  instance  of  Germany,  an  international 
commission  assembled  in  Constantinople  and  prepared  a  pro- 
ject for  establishing  mixed  courts  in  Egypt.  At  the  same 
time  the   Sultan  admitted  the  power  of  his  viceroy,  the 


>  Edward   Dicey,    Story   of    the   Khedivate,    London,    1902. 


ACTIVITY  OF  THE  COURTS  155 

Khedive,  to  conclude  treaties  of  commerce  and  treaties  re- 
lating to  the  internal  administration  of  the  country.  The 
governments  of  the  foreign  nations  more  closely  related  to 
Egypt — that  is  the  French,  Italian  and  Greek,  whose  com- 
bined interests  represented,  if  we  except  the  British  traffic 
through  the  canal,  much  the  larger  part  of  the  invested 
foreign  capital  and  of  the  foreign  population  as  well — were 
reluctant  to  enter  upon  an  agreement  which  would  give 
other  European  powers  a  foothold  for  future  interference  in 
the  affairs  of  Egypt.  Yet  the  influence  of  the  other  powers 
preponderated,  and  with  special  reservations  as  to  bank- 
ruptcy cases  insisted  upon  by  France  in  the  interests  of 
French  creditors,  the  modified  project  of  Nubar  Pasha  was 
adopted.  ^ 

The  European  governments  declared  their  acceptance  of 
the  plan  by  signing  special  conventions  with  Egypt ;  ^  the 
United  States,  by  a  proclamation  of  the  President  authorized 
by  Act  of  Congress.  ^ 

The  actual  opening  of  the  tribunals  occurred  on  February  Activity 
15,  1876.  From  1876  to  1890  alone,  the  courts  were  occu-  courts 
pied  with  the  hearing  of  47,428  causes  and  they  rendered 
34,086  decisions.*  The  excellence  of  their  administration 
has  been  deservedly  praised.  It  has  at  no  time  been  justly 
charged  that  they  were  acting  either  as  mere  functionaries 
of  the  Egyptian  government  or  that  they  were  submitting 
to  the  foreign  influence  predominating  in  Egyptian  affairs. 
The  nine  foreign  judges,  who,  with  the  four  native  judges, 
composed  the  court  of  appeal  at  Alexandria  in  1896, 
were  chosen  as  follows :  One  judge  each  by  the  governments 
of  Great  Britain,  the  United  States  of  America,  Germany, 
Austria-Hungary,  Greece,  Italy  and  Eussia,  and  two  judges 
by  the  government  of  France. 

» F6raud-Giraud,    Les    institutions   judiclaires    en    Egypte;     Rev.    de 
droit  internat.,   1890,   p.   70;   a  bibliography  is   appended. 
» Brit,  and  For.  State  Papers,  vol.  66,  p.  106. 

•  Act  of  March  23,  1874,  18  Stat,  at  Large,  23.  The  proclamation  was 
dated  May  27,  1876,  19  Stat,  at  Large,  Proclamations,  p.  iv;  it  is  also 
found  in  For.  Rel.  1876,  p.  1. 

*  F$raud-Giraud,   loc.   cit.,  p.   73. 


156 


ORGANIZATION  AND  POWERS 


Analysis 
of  the 
Regle- 
ment 
d' organi- 
sation 
judl- 
ciaire 


The  jurisdiction  of  the  international  tribunals  extends  in 
general  to  civil  and  commercial  cases  between  aliens  and 
natives,  including  officials  of  the  Egyptian  government,  and 
between  aliens  of  different  nationalities;  questions  of  per- 
sonal status,  'matrimonial  causes  and  inheritance  belong  as 
formerly  to  the  consular  courts,  yet  jurisdiction  in  these 
matters  has  tended  to  widen  because  the  excellent  adminis- 
tration of  the  tribunals  has  led  to  the  submission  to  them  of 
whatever  could  be  claimed  to  be  within  their  power.  In 
1900  France  withdrew  her  reservation  as  to  bankruptcy 
cases.  The  courts  have  a  limited  criminal  jurisdiction,  in- 
tended in  the  first  place  solely  for  their  own  protection,  but 
extended  in  1889  by  decree  of  the  Khedive  so  as  to  apply  to 
all  general  police  regulations  for  the  public  security  not  in- 
cluding offenses  of  a  serious  nature.  ^  The  law  administered 
in  these  tribunals  is  that  of  the  Egyptian  codes,  which  are 
modelled  upon  the  French.  The  official  languages  are 
Arabic,  Italian  and  French.  There  are  three  courts  of  first 
instance,  each  originally  composed  of  seven  judges,  four 
aliens  and  three  natives,  and  a  court  of  appeals  at  Alex- 
andria, similarly  composed.  The  number  of  judges  has 
since  been  increased.  The  judges  are  nominated  each  by  a 
foreign  government  represented  in  the  tribunals,  and  upon 
such  nomination  the  Khedive  makes  the  appointment.  They 
hold  office  five  years  and,  though  answerable  upon  charges 
before  the  court  of  appeals  with  liability  to  loss  of  salary, 
hold  office  during  the  quinquennial  period.  They  may  not 
receive  any  emolument  beyond  their  stipulated  salaries  or 
accept  any  office  or  honor  from  the  Egyptian  or  any  other 
government.  The  execution  of  sentences  is  accomplished 
through  officers  of  the  courts  with  the  aid  of  the  Egyptian 
authorities,  if  necessary;  yet  the  consul  of  the  foreigner 
interested  in  the  judgment  must  be  notified  and  may  be 
present,  if  he  desires,  when  the  execution  is  effected.^ 


1  Brit,  and  For.  State  Papers,  vol.  81,  p.  578. 

*  The  text  of  the  RSglement  is  to  be  found  in  Brit,  and  For.  State 
Papers,  vol.  66,  p.  503. 


CRISIS  OF  THE  CAISSE  DE  LA  DETTE 


157 


Soon  after  the  courts  were  established  decisions  were  ren- 
dered against  the  Egyptian  government  and  against  the 
Khedive  himself,  involving  large  sums  of  money,  but  Egypt 
and  the  Khedive  had  long  been  financially  embarrassed  and 
the  judgments  remained  unexecuted.  The  creditors  loudly 
protested,  and  in  1878  the  court  of  appeals  went  so  far  as 
to  suggest  that  the  powers  intervene  to  compel  payment. 
After  a  further  delay  of  two  years  the  Khedive's  govern- 
ment responded  by  decreeing  that  it  would  pay  fifty-five  per 
cent,  of  the  amount  of  the  judgment  in  coin  and  the  balance 
in  paper.  This  proposition  was  obviously  a  violation  of  the 
original  agreement  of  Egypt  to  execute  the  judgments  of  the 
tribunals.  Would  the  powers  now  intervene  ?  The  initiative 
was  again  being  taken  by  Germany,  when,  by  the  joint  action 
of  France  and  Great  Britain,  a  change  in  the  financial 
regime  of  Egypt  was  unexpectedly  brought  about  and  the 
debts  were  refunded.  ^ 

A  second  crisis  arose  in  1896.  The  Khedive's  government, 
upon  the  advice  of  the  British  diplomatic  agent,  had  de- 
flected the  revenues  so  as  to  contribute  £500,000  toward  the 
expenses  of  a  military  expedition  into  the  Soudan.  The 
creditors  of  Egypt  at  once  brought  suit  and  obtained  judg- 
ment in  the  international  tribunals  to  compel  the  govern- 
ment to  preserve  its  funds  intact  under  the  provisions  of  the 
international  conventions.  These  conventions,  establishing 
a  "^caisse  de  la  dette,'  controlled  by  an  international  com- 
mission, were  held  to  be  contracts,  which  were  justiciable 
under  Article  XI  of  the  Eeglement,  and  which,  by  an  ad- 
ministrative act,  the  Egyptian  government  had  broken.  As 
to  the  defense  that  the  commission  had  decided,  by  a  vote  of 
four  to  two,  that  this  extraordinary  expenditure  would  in 
the  end  benefit  the  creditors,  the  court  held  that  the  min- 
ority of  the  commission  could  bring  suit  to  prevent  this 
appropriation  of  moneys  since  the  commissioners  were  in- 
dividually responsible  to  the  creditors.  How  a  military  ex- 
pedition, undertaken  at  extreme  risk,  could,  before  it  was 


Crisis  of 
1880:    exe- 
cution   of 
judg- 
ments 
against 
the  gov- 
ernment 
of  Egypt 


Crisis  of 
1896:   con- 
trol of 
the 

'calsse  de 
la  dette' 


*  Argument  of  M.  Manoury  before  the  National  Assembly  of  France, 
November  23,  1882;  De  Clercq,  Traites  de  la  France,  vol.   14,  p.   90. 


158 


FUTURE  OF  THE  TRIBUNALS 


Ques- 
tion of 
perma- 
nece  of 
the  trib- 
unals 


initiated,  be  regarded  as  a  benefit  to  the  creditors,  it  was 
difficult  to  understand.^ 

The  affair  caused  irritation  in  England,  and  Lord  Salis- 
bury expressed  an  opinion  that  the  time  had  arrived  when 
the  constitution  and  powers  of  the  mixed  courts  ought  to  be 
reconsidered.  Nevertheless  in  1899  England,  with  the  other 
powers,  again  renewed  for  a  period  of  five  years  the  conven- 
tion upon  which  the  authority  of  the  courts  rests.  The  con- 
tinental governments,  jealous  of  the  increase  of  English  in- 
fluence in  Egypt,  have  looked  upon  the  various  international 
institutions  of  that  country,  the  tribunals,  the  commission 
for  liquidation  of  the  debt,  the  sanitary  commission,  and  the 
municipality  of  Alexandria,^  as  agencies  whose  success 
would  prevent  any  one  power  from  gaining  domination. 
Great  Britain  has  professed  to  be  occupying  Egypt  and  to 
some  extent  controlling  its  administration  only  temporarily 
and  has  refrained  from  assuming  a  protectorate.  In  reality, 
however,  the  power  of  Great  Britain  in  Egypt  is  far  greater 
than  that  which  a  protector  usually  exercises.  But  since  the 
Anglo-French  agreement  of  1904,  which  leaves  France  a 
prevailing  influence  in  Morocco  and  recognizes  British  pre- 
dominance in  Egypt,  it  seems  probable  that  at  least  by  1912, 
when  the  conventions  expire  that  give  authority  to  the  debt 
commission,  the  international  tribunals  will  be  reorganized 
or  possibly  transformed  so  as  to  become  an  integral  part  of 
the  Egyptian  national  system  of  courts.^ 


1  Mcllwraith,  The  Egryptian  Government  and  the  Caisse  de  la  Dette, 
Jour.  Soc.  Compar.  Legislation,  vol.  1,  (old  series),  p.  386;  the  foot- 
notes contain  reports  of  the  cases. 

» The  municipality  of  Alexandria  i3  not  justiciable  before  the  Inter- 
national tribunals;  amendment  to  Article  IX  of  the  R&glement  judi- 
ciare,   Brit,  and  For.   State  Papers,   vol.  92,  p.  882. 

»  The  reports  of  1905  and  1906  of  Lord  Cromer,  British  Agent  and 
Consul-General  in  Egypt,  propose  a  Legislative  Council  for  Egypt 
under  international  agreement  and  substitution  of  Egyptian  courts 
under  reservations  in  place  of  the  present  international  tribunals; 
infra.   Appendix  X. 

By  decree  of  the  Egyptian  government,  February  10,  1905,  the  inter- 
national tribunals  are  to  be  continued  for  five  years  from  that  date. 

A  system  of  international  tribunals  similar  to  those  in  Egypt  was 
proposed  for  Japan  in  1886  in  place  of  the  outright  relinquishment  of 
consular  jurisdiction  by  that  government;  but  the  Japanese  declined 
to  accept  it;  infra,  p.  185.  Rev.  Stat.,  Sec.  4126  refers  to  jurisdiction  of 
mixed  cases  in  Persia;  supra,  p.  45. 


MIXED  CASES  IN  CHINA  159 

At  the  conference  of  the  ministers  to  China  in  1879  the   Mixed 
subject  of  judicial  proceedings  in  mixed  cases  was  very  thor-  china: 
oughly  and  ably  presented  by  the  American  minister,  Mr.   ence  of 
George  F.  Seward.     From  the  special  reports  of  consuls,  it  ^^^ 
was  found  that  in  actual  practice  the  settlement  of  a  claim 
against  a  Chinese  debtor  by  resorting  to  a  Chinese  court  was 
next    to    impossible.      The    Chinese    law   was    deficient   in 
remedies;  even  the  presence  of  foreigners  in  Chinese  courts, 
whether  as  parties  to  the  action,  witnesses  or  attorneys,  was 
ordinarily  disallowed.    In  consequence,  when  a  friendly  set- 
tlement out  of  court  could  not  be  brought  about,  the  consul 
was  almost  unavoidably  obliged  to  undertake  to  prescribe  to 
the  Chinese  magistrate  what  judgment  to  pronounce.    Thus, 
although  the  treaties  required  that  the  decision  be  made  by 
the  judge  of  the  defendant's  nationality,  a  form  of  mixed 
court  was  being  developed  by  usage.     In  fact  there  was  a 
tendency  on  the  part  of  some  of  the  foreign  ministers  them- 
selves to  favor  the  adoption  of  a  system  of  mixed  courts. 
The  success  of  the  international  tribunals  in  Eg)''pt  was  held  a.  system 
forth  as  an  example  of  what  might  be  done  in  China.    But  courts 
the  American  minister  and  his  British  colleague  were  dis-  practi- 
inclined  toward  this  proposition  for  the  reason  that  con- 
ditions in  China  differed  so  essentially  from  those  in  Egypt 
as  to  offer  no  guarantee  of  success.     Egypt  was  compara- 
tively a  small  country,  foreign  interests  were  well  central- 
ized and  the  nature  and  methods  of  European  jurisprudence 
were  better  known  to  the  officials  of  the  Egyptian  govern- 
ment.   In  China  the  distances  between  the  open  ports  were 
very  great,  the  foreign  residents  were  more  widely  segre- 
gated from  the  native  population;  and  the  governing  classes 
in  China  had  not  yet  acquainted  themselves  with  western 
law  and  judicial  practice.    A  system  of  mixed  courts  at  that 
time  and  for  China  as  a  whole  was  therefore  deemed  im- 
practicable. 

Moreover,  Mr.  Seward,  having  in  mind  the  cooperative   Mr.  sew- 
or,  as  'more  recently  called,  the  'open  door'  policy  initiated  proposi- 
by  his  predecessor,  Mr.  Burlingame,  was  persuaded  of  the 
advisability    of    favoring    the    development    of    a    national 


160  MR.  SEWARD'S  PLAN,  1879 

system  of  jurisprudence  for  China  upon  western  principles 
of  law;  and  with  that  ultimate  end  in  view,  while  proposing 
that  the  rule  of  the  treaties  requiring  trial  and  judgment  by 
the  court  of  the  defendant  should  be  strictly  adhered  to,  he 
recommended  that  the  conference  express  a  desire  to  the 
Tsungli-Yamen  to  have  the  following  improvements  intro- 
duced: First,  that  the  Chinese  courts  be  designated  in 
which  complaints  of  foreigners  could  be  heard  and  de- 
termined; second,  that  the  right  of  the  foreigner  to  appear 
in  these  courts  in  person  and  with  witnesses  be  secured,  and 
that  compulsory  process  to  compel  the  attendance  of  native 
witnesses  be  allowed;  third,  that  the  consul  of  the  com- 
plainant be  entitled  to  be  present  in  court  to  assist  in  placing 
the  evidence  before  it;  fourth,  that  records  of  all  the  pro- 
ceedings, evidence,  opinions  and  judgment  be  kept.  An 
additional  memorandum  upon  the  Chinese  or  so-called  mixed 
court  at  Shanghai  was  submitted  to  the  conference.  Mr. 
Seward's  entire  report  was  unanimously  adopted  and  a  joint 
note  of  the  ministers  communicating  their  views  was  sent 
to  the  Tsungli-Yamen.  In  reply  the  Chinese  authorities 
expressed  themselves  conservatively,  and  declined  to  take 
immediate  steps  for  the  betterment  of  the  Chinese  courts. 
Existing  Yet  in  the  course  of  years  the  lines  of  improvement  sug- 
in^China  gested  in  the  conference  of  1879  have  been  followed,  and 
the  unanimous  agreement  of  the  ministers  to  uphold  strictly 
the  rule  of  the  treaties,  requiring  that  in  mixed  cases  a 
Chinese  defendant  be  tried  by  a  Chinese  judge,  the  foreign 
consul  being  restricted  to  assisting  in  bringing  evidence  be- 
fore the  magistrate  and  having  no  right  to  interfere  as  to 
his  decision  in  the  case,  undoubtedly  contributed  much  ta 
the  preservation  and  development  of  the  jurisdiction  of 
China  in  respect  to  the  claims  of  foreigners.^ 
Cases  be-       As  between  foreigners  of  different  nationalities  in  China, 

tWGGTl   fOF 

eigTiers       the  rule  of  suing  in  the  defendant's  court  has  general  appli- 
ent  cation.     The   British  courts  require   of   an   alien  plaintiff 

aiities        suing  a  British  defendant  that  he  show  the  written  consent 

»  For.  Rel.  1880,  p.  140,  143,  145-67,  189,  225-35,  242-8,  249-56,  273;  Brit,  and 
For.  State  Papers,  vol.  72,  p.  1015-31. 


DISTINCTIONS  AS  TO   CHINA  161 

of  his  consul,  besides  giving  security  for  the  payment  of  fees 
and  for  performance  of  the  decision  of  the  court.  The  re- 
quirement is  obviously  fair  in  that  it  obliges  the  foreign 
plaintiff  only  to  submit  himself  to  the  process  of  the  court 
and  nothing  more,  yet  it  is  of  much  value  to  have  the 
defect  of  lack  of  jurisdiction  over  the  alien  plaintiff  thus 
partially  removed.  ^  When  a  counterclaim  against  the 
Japanese  government  in  an  action  against  the  Peninsular 
and  Oriental  Steamship  Company  came  by  appeal  before  the 
Privy  Council  in  1895  it  was  not  entertained.  ^  In  the 
American  courts  a  set-off  is  allowed  to  be  pleaded  against  an 
alien  plaintiff  in  so  far  as  it  is  a  defense.  ^ 

It  has  been  noted  as  a  distinguishing  feature  of  juris-  Diffe»- 

^ncGs  of 

diction  in  mixed  cases  in  China  that  when  one  of  the  parties   jurisdic- 
is  a  native,  contrary  to  the  practice  in  the  Levant,  the  rule   mixed 

CtlR^S    ilT 

of  suing  the  defendant  in  the  court  of  his  nationality  pre-  China 
vails.  Turkey  claims  jurisdiction  over  all  cases  involving  Turkey 
Turkish  subjects;  by  treaty  China  has  conceded  to  the 
foreign  consular  courts  the  trial  of  cases  brought  by  Chinese 
plaintiffs  against  defendants  who  are  foreigners.  The  pres- 
ence of  a  Chinese  official  in  such  a  trial  in  a  consular  court 
is  not  required  by  law,  although  for  the  sake  of  better 
securing  execution  of  the  judgment  his  presence  is  usually 
solicited.  If  a  Chinaman  is  defendant,  the  case  is  heard  be- 
fore a  Chinese  magistrate,  but  never  without  the  presence 
of  a  consular  officer  of  the  alien's  nationality  sitting  with  the 
Chinese  judge.*  Moreover,  it  frequently  happens  that  an 
amicable  settlement  of  a  dispute  between  Chinese  and 
foreign  -merchants  is  effected  without  recourse  to  a  formal 
trial. 

It  remains  to  call  attention  to  the  fact  that  occasionally   Dipio- 
mixed  cases,  especially  criminal  cases  resulting  from  anti-   corre- 
foreign  riots,  involve  such  perplexities  or  become  of  such   |nce  m 
importance  to  the  public  policy  that  they  are  made  the  sub-   gVave° 
ject  of  diplomatic  correspondence  to  the  extent  of  demand-   quence 

>  For.  Rel.  1882,  p.  374;  1883,  p.  600. 
=  L.   R.,   A.  C.   (1895),   p.  644. 
» 11  Opin.  Atty.-Gen.  474. 

*  Torture  of  natives  to  compel  giving  of  evidence  in  mixed  cases  has 
long  been  disallowed;  For.  Rel.  1880,  p.  292;  1881,  p.  213. 


162  SETTLEMENTS  WITHOUT  LITIGATION 

ing  special  reparation  and  indemnity  from  the  oriental  gov- 
ernment. What  is  thus  demanded  is  much  more  than  the 
enforcement  of  the  claims  of  foreign  complainants  before 
native  tribunals :  it  is  required  that  the  oriental  government 
directly  avow  its  responsibility  for  the  particular  outrage. 
The  United  States  apparently  recognized  the  reciprocal 
operation  of  such  a  rule  in  granting  indemnities  to  subjects 
of  China  for  loss  of  life  and  property  in  the  anti-Chinese  riot 
at  Rock  Springs,  Wyoming,  in  1885;  but,  in  other  cases  in 
which  similar  indemnities  have  been  paid  by  the  United 
States  for  injuries  inflicted  on  Chinese,  the  redress  has  been 
expressly  declared  to  be  an  act  of  benevolence.^  When  simi- 
lar unfortunate  outbreaks  of  violence  have  occurred  in  China 
and  Japan,  those  governments  have  not  delayed  in  the  pay- 
ment of  indemnities.  The  peculiar  necessity  of  insisting 
upon  payment  of  indemnities  by  Turkey  for  the  losses  by 
American  citizens  during  the  disturbances  of  1894-6  arises 
from  the  fact  that  the  Turkish  government  though  fore- 
warned of  impending  disturbances  did  not  take  measures 
requisite  for  their  prevention. 

Finally,  there  has  been  at  least  one  case  involving  an  ori- 
Si'^sStie-  ental  government  and  a  foreign  claimant  which  has  been 
arbitri''  submitted  to  arbitration.  It  was  the  claim  of  the  estate  of 
Dr.  M.  A.  Cheek,  an  American  citizen,  against  the  govern- 
ment of  Siam,  arbitrated  in  1898.  The  summary  proceed- 
ings which  had  been  resorted  to  by  Siam,  namely,  the  con- 
fiscation of  certain  lots  of  teakwood  timber  and  other  prop- 
erty, was  claimed  to  be  in  violation  both  of  the  treaty  of 
1856  and  of  Siamese  law  as  well;  and  it  was  contended  for 
Dr.  Cheek  that  the  consular  court  of  the  United  States  was 
the  proper  forum  in  which  to  have  brought  action  against 
him.  It  was,  however,  agreed  between  the  parties,  the 
American  government  being  cognizant  of  the  proceedings, 
to  submit  the  controversy  to  arbitration.  The  arbitrator 
was  Sir  Nicholas  Hannen,  Chief  Justice  of  Her  Majesty's 
Supreme  Court  for  China  and  Japan.  ^ 

1  Supra,  p.  148,  footnote  2. 

"Moore.  International  Arbitrations,  vol.  2.  p.  1899-1908;  vol.  5,  p.  5068. 


An  ex- 


tion 


VI 


THE  FOREIGN  MUNICIPALITY  AT  SHANGHAI 


From  1843  to  1860  the  treaties  with  China  restricted  the  Organi- 

zation  or 

trade  and  residence  of  foreigners  to  the  five  ports  of  Canton,   foreign 

•!    1-       commu- 
Amoy,  Foochow,  Ningpo  and  Shanghai.    It  was  not  until  the  nities  in 

treaties  of  1858,  which  were  first  actually  put  into  operation 
at  the  close  of  the  war  of  Great  Britain  and  France  against 
China  in  1860,  that  the  great  river,  the  Yangtse,  and  the 
important  seaports  north  of  that  river  were  open  to  western 
commerce.  Under  the  treaties  of  1858  the  privilege  of  resi- 
dence at  the  open  ports  consisted  of  a  right  to  rent  and  build 
upon  land  adjacent  to  the  Chinese  cities  in  a  district  set 
apart  by  the  local  representative  of  the  imperial  government 
in  conference  with  the  consul.  At  the  larger  commercial 
centers  the  number  of  foreigners  increased  sufficiently  to 
make  some  form  of  municipal  organization  advisable,  though 
perhaps  as  great  a  reason  for  such  municipal  organization 
was  that  the  native  Chinese,  being  permitted  to  live  within 
the  concessions,  became  so  numerous  as  to  make  necessary 
some  common  regulation  and  control  for  the  security,  order, 
and  cleanliness  of  the  mixed  community.  The  foreign  popu- 
lation of  China  has  always  been  comparatively  very  small, 
never  exceeding  thirty  thousand,  and  though  under  the 
American,  British  and  Japanese  treaties  of  1903-3  more  than 
thirty  ports  are  now  open  and  many  foreigners,  mostly  mis- 
sionaries, are  residing  in  the  interior,  the  only  considerable 
foreign  communities  are  at  the  three  ports  of  Canton, 
Shanghai  and  Tientsin.^ 

» The   Directory   and    Chronicle    for   China,    etc.,    published    annually 
by  the  Hongkong  Daily  Press,  is  a  most  complete  and  valuable  book 


164  MACAO  AND  HONGKONG 

The  Por-       The  earliest  of  the  forei/rn  settlements  in  China  was  that 

tuguese  ° 

colony  of  of  Macao.    In  1557  the  Portuoruese  were  allowed  to  careen 

Macao 

their  ships  and  store  their  goods  in  a  small  harbor  at  the 
outer  end  of  a  rocky  island  south  of  the  entrance  of  the  river 
leading  to  Canton.  Sixteen  years  later,  to  keep  the  Portu- 
guese secluded,  the  Chinese  authorities  built  a  high  wall 
across  the  island.  Within  the  town  itself  the  Portuguese 
were  subjected  to  Chinese  law,  even  in  criminal  matters. 
This  Chinese  regime  did  not  end  until  1849,^  and  the  Portu- 
guese tenure  of  Macao  was  not  definitely  established  until 
China  ceded  the  territory,  four  square  miles  in  extent,  in 
1887.  The  population  of  the  colony  is  reported  now  to  be 
ninety-five  per  cent.  Chinese,  the  commerce  of  the  port  is 
nearly  all  in  the  hands  of  natives,  and  the  Chinese  are 
largely  left  to  their  own  administration  of  affairs. 
The  Brit-  Directly  across  the  narrow  bay  or  river  northward  from 
ny  of  Macao  is  the  British  colony  of  Hongkong.  The  island  and  a 
kong  small  portion  of  the  peninsula  near  it  were  ceded  by  China 

in  1842.  By  the  cession  of  Kowloon  in  1850  and  chiefly  by 
the  ninety-nine  year  lease  of  1898  the  area  of  Hongkong  has 
been  increased  from  less  than  twenty-nine  to  more  than 
four  hundred  and  five  square  -miles.  The  excellent  harbors 
and  bays  of  Hongkong  are  the  principal  rendezvous  of  the 
British  navy  in  Asiatic  waters,  and  the  foreign  shipping  of 
the  port  nearly  equals  that  of  New  York,  London  or 
Hamburg.  In  government  Hongkong  is  a  crown  colony,  and 
though  there  has  been  some  desire  upon  the  part  of  the 

of  reference;  it  contains  full  information  regarding  trade  and  resi- 
dence at  the  open  ports  and  has  excellent  maps  of  these  ports;  Dennys 
and  Mayers,  Treaty  Ports  of  China  and  Japan,  London,  1867,  also  con- 
tains a  very  full  history  and  description  of  the  open  ports  and  has 
excellent  maps;  Smith,  D.  W.,  European  Settlements  in  the  Far  East, 
London,   1900. 

"According  to  a  return  of  the  Imperial  Customs  authorities  the 
total  number  of  foreigners  resident  In  the  open  ports  of  China  was 
27,227  at  the  end  of  1904.  Among  them  were  5,981  British,  9,139  Japanese, 
3,220  Americans,  1,871  Germans,  3,387  Portuguese,  1,374  French,  278 
Spaniards,  366  Italians,  308  Russians,  286  Belgians,  other  nationalities 
being  represented  by  very  few  members.  About  one-half  of  the  total 
nximber  of  foreigners  resided  at  Shanghai."  Statesman's  Year-book, 
1906,   p.   762-3. 

'  Dennys  and  Mayers,  Treaty  Ports,  p.  209. 


BURLINGAMB'S    COOPERATIVE    POLICY 


165 


foreign  residents  to  organize  a  municipality  for  the  city  of 
Victoria,  the  fact  that  ninety-seven  per  cent,  of  the  popu- 
lation of  the  colony  is  Chinese,  has  deterred  the  British 
authorities  from  venturing  to  remove  the  control  of  affairs 
from  the  Colonial  Office.  The  various  Chinese  communities 
are  permitted  to  regulate  and  administer  their  own  affairs 
under  some  supervision.  The  proximity  of  this  colony  to  the 
great  city  of  Canton  and  to  Macao  has  necessitated  the 
making  of  very  full  and  explicit  conventions  and  Orders  in 
Council  for  the  extradition  of  criminals.  ^ 

Previous  to  1842  foreign  ships  trading  at  Canton  were  not 
allowed  to  approach  the  city  nearer  than  a  point  in  the  river 
several  miles  below.  There  they  transferred  their  cargoes 
in  mid-stream  to  and  from  native  junks.  After  the  treaty, 
the  British  obtained  the  setting  apart  of  land  at  the  junction 
of  two  rivers  outside  of  the  city  for  rental  to  foreigners. 
This  land  was  later  separated  from  the  surroundings  by  a 
broad  canal  and  a  wall,  and  it  came  to  be  known  as  the 
Shamien  (Chinese  for  Sand  Flats).  There  was  also  an 
American  concession;  in  fact  the  regulations  for  governing 
it  were  approved  by  Mr.  Cushing  before  he  left  China  in 
1844.2 

In  general  the  United  States  has  not  favored  the  granting 
of  separate  or  exclusive  concessions  of  land  at  the  various 
ports  to  the  several  treaty  powers.  It  has  preferred  a  policy  of 
cooperation.  The  announcement  of  this  policy  by  the  Ameri- 
can minister,  Anson  Burlingame,  in  1863  was  occasioned 
by  the  apprehensions  then  prevalent  that  such  setting  apart 
of  land  might  be  the  first  step  in  the  development  of  a  per- 
manent lease  or  outright  cession  of  territory.^  The  British 
authorities  disclaimed  any  such  intention.  Moreover,  they 
declared  that  foreigners  of  all  nationalities  were  permitted 
to  rent  land  on  the  British  concession  at  Shanghai  without 
in  any  way  impairing  their  extraterritorial  rights  under  the 
treaties. 


The   for- 
eign set- 
tlement 
at  Can- 
ton 


The  co- 
Bpera- 
tive   poli- 
cy re- 
specting 
the  for- 
eign   set- 
tlements 


>  Indexes  of  the  British  and  Foreign  State  Papers  and  of  Hertslet's 
Commercial  Treaties. 
2  Sen.  Doc.  67,  p.  87  (vol.  2),  28th  Cong.,  2d  Sess. 
»  Dipl.  Corr.  1863,  pt.  2,  p.  859. 


166 


SEPARATE  GERMAN  CONCESSION'S 


Claim  of 
French 
jurisdic- 
tion 


German 
conces- 
sions   at 
Tientsin 
and 
Hankow 


The  French  authorities  appear  to  have  claimed  full  terri- 
torial jurisdiction  within  their  concessions,  but  the  claim  has 
never  been  admitted  by  Great  Britain  or  the  United  States. 
This  question  of  jurisdiction  arose  in  1898  when  it  was 
proposed  to  extend  the  boundaries  of  the  three  concessions.^ 
Within  the  proposed  French  extension  considerable  land 
held  by  Americans  was  included.  In  order  to  avoid  any  pos- 
sible claim  of  jurisdiction,  it  was  decided  to  survey  the  boun- 
daries of  the  extension  so  as  to  exclude  the  American  prop- 
erty.- 

Following  an  exchange  of  notes  between  Germany  and 
China,  and  under  arrangements  made  between  the  local 
Chinese  authorities  and  the  consuls  in  1895,  the  German 
government  has  obtained  concessions  of  land  at  Tientsin  and 
Hankow.^  Germany  claimed  that  separate  concessions  were 
necessary,  because  of  the  impossibility  of  securing  satisfac- 
tory sites  for  business  buildings  in  the  existing  concessions 
and  because  at  Hankow  the  crowding  of  the  wharves  in  the 
British  concession  and  the  preference  given  to  British  ship- 
ping had  resulted  in  a  practical  exclusion  of  German  ships 
from  such  privileges.  It  is  said  to  be  the  policy  of  Germany 
to  require  that  any  foreigner  who  may  be  permitted  to  rent 
land  in  the  German  concession  shall  submit  himself  in 
respect  to  such  property  to  the  regulations  for  the  adminis- 
tration of  the  concession  and  to  the  jurisdiction  of  Germany 
so  far  as  these  regulations  are  concerned;*  but  neither  the 
treaty  nor  the  agreements  between  the  Chinese  officials  and 


»  The  American  concession  lies  north  of  the  British  and  the  French 
south  of  it  and  next  to  the  Chinese  city.  The  British  and  American 
concessions  have  been  united  under  a  common  municipal  administra- 
tion since  1854. 

=  For.    Rel.   1899,   p.   143. 

'  Staatsarchiv,  vol.  61,   p.  229,  233. 

For  the  land  regulations  of  the  British  concession  at  Hankow,  ap- 
proved May  5,  1893,  see  Brit,  and  For.  State  Papers,  vol.  85,  p.  763; 
slight  amendments  were  approved  March  17,  185G,  ibid.,  vol.  88,  p.  203. 
For  the  land  regulations  of  the  British  municipal  extension  at  Tien- 
tsin, approved  March  31,  1898,  see  Brit,  and  For.  State  Papers,  vol.  90, 
p.  1004.  For  the  land  regulations  of  the  British  concession  at  Chin- 
klang,  approved  September  11,  1894,  see  Brit,  and  For.  State  Papers, 
vol.  86,  p.  153. 

*  Staatsarchiv,  vol.  61,  p.  227. 


JAPANESE  CONCESSIONS 


167 


the  German  consuls  of  October  5,  1895,  for  Hankow,  and  of 
October  30,  1895,  for  Tientsin,  announce  such  a  require- 
ment, and  it  is  a  well  settled  principle  of  extraterritoriality 
that  no  citizen  or  subject  of  a  treaty  power  can,  except  by 
expatriation,  divest  himself  of  the  rights  guaranteed  by 
treaty.^ 

The  Japanese  government  stipulated  in  the  protocol  of    Japa- 
November  10,  1896,  that  a  settlement  for  the  exclusive  use   concea- 

.      sions 

of  Japanese  should  be  set  apart  without  delay  at  Shanghai, 
Tientsin,  Amoy  and  Hankow  upon  its  own  demand.^  A 
small  concession  for  Japanese  residents  at  Amoy  was  made 
in  1899.3 

The  number  of  separate  land  concessions  in  China  and  in 
Korea  has  largely  increased  since  1894.* 

Immediately  after  the  making  of  the  treaties  of  1843-5   ^^^'^^^'J^g. 
the  prosperity  of  Shanghai  began  developing,  and  before  the   g^^'^^j^^f 
treaties  of  1858  were  negotiated,  the  city  had  taken  the 
place  of  leading  importance  formerly  held  by  Canton. 

The  fortunate  situation  of  Shanghai  near  the  mouth  of 
the  Yangtse  Eiver,  upon  which  and  the  great  system  of 


1  Supra,  p.  91.  The  land  regulations  for  the  British  municipal  ex- 
tension at  Tientsin,  see  footnote  2,  supra,  contain  a  similar  provision 
In  the  preamble,  but  modify  it  with  the  expression  that  it  is  under- 
stood that  this  obligation  of  foreigners  is  derived  from  their  individual 
assent,   approved  by  their  national  authorities. 

2  Mayers,   Chinese  Treaties,   ed.  1897,   p.  191. 

In  pronouncing  the  judgment  in  Macdonald  v.  Anderson,  British 
Consular  Court  at  Tientsin,  January  16,  1904,  Mr.  Justice  F.  S.  A. 
Bourne  said:  "The  Tientsin  British  Municipal  Extension  Is,  as  I 
understand,  an  area  handed  over  by  the  Chinese  Government  to  be 
municipally  controlled  by  the  British  Local  Authorities.  There  was  no 
demise  of  the  land,  as  there  was  by  the  Chinese  to  the  British  govern- 
ment in  the  case  of  the  Tientsin  British  Concession.  The  native  pro- 
prietors may  hold  their  land  thereon,  or  sell  to  foreigners  of  any 
nationality  as  they  please.  In  fact  the  conditions  are  much  the  same 
as  those  under  which  the  Shanghai  Settlement  is  held.  The  Sover- 
eignty undoubtedly  remains  in  the  Emperor  of  China."  North  China 
Herald,   vol.   Ixii,   p.  248,   February  5,   1904. 

3  For.  Rel.  1899,  p.  150.  For  the  land  regulations  and  by-laws  of 
January  10,  1902,  of  the  settlement  at  Kulanger,  Amoy,  see  MS.  Dept. 
State,  U.  S.  Consul  at  Amoy,  No.  8,  February  4,  1902. 

*  For  land  regulations  Chenampo  and  Mokpo,  Korea,  of  October 
16,  1897,  see  For.  Rel.  1898,  p.  478,  and  Brit,  and  For.  State  Papers,  vol. 
91,  p.  1177.  For  those  at  Kunsan,  Masampo,  Songchin,  Korea,  of  June 
2,  1899,  see  Brit,  and  For.  State  Papers,  vol.  91,  p.  1190. 


168 


ORGANIZATION  AT  SHANGHAI,  1854 


Origin 
of    the 
foreign 
muni- 
cipality 


Organi- 
zation 
made 
perma- 
nent   in 
1854 


canals  radiating  from  it,  the  trade  of  all  central  China 
is  borne,  has  made  the  city  one  of  the  leading  mercantile 
centers  of  the  world. 

In  1846  and  1848  the  British  consuls  and  the  Chinese 
intendants  of  the  circuit  agreed  upon  the  boundaries  within 
which  the  rental  in  perpetuity  of  parcels  of  land  by  for- 
eigners was  to  be  facilitated,  and  about  the  same  time  simi- 
lar arrangements  were  effected  by  the  French  and  American 
consuls.  These  arrangements  were  called  land  regulations, 
and,  while  they  prescribed  the  methods  of  acquiring  and 
holding  land,  they  also  provided  certain  rules  as  to  payment 
of  taxes  for  the  maintenance  of  highways  and  wharves. 

The  validity  of  these  early  land  regulations  for  the  British 
and  American  concessions,  so  far  as  concerned  individuals  of 
other  nationalities,  was  much  questioned.  When  the  Tai- 
ping  rebels  approached  the  city,  the  imperial  authorities 
abandoned  it,  and  the  consuls,  assisted  by  their  national 
naval  forces,  organized  the  residents  for  the  defense  of  the 
settlement.  One  of  the  most  serious  phases  of  the  situation 
was  that  a  very  large  number  of  Chinese  had  taken  refuge 
within  the  concessions  and  there  was  much  disorder  among 
them.  The  foreign  residents  had  previously  been  providing 
for  the  security,  order  and  cleanliness  of  the  concessions  by 
authorizing  committees  to  act  for  them  and  to  collect 
moneys  for  public  improvements.  Such  a  committee  was 
that  of  roads  and  jetties,  which  had  a  very  important  part  in 
the  development  of  the  settlement.  But  the  desire  for  a 
permanent  municipal  organization  had  become  so  general  in 
1854  that,  with  the  approval  of  the  ministers,  the  consuls 
and  the  Chinese  intendant  of  the  circuit,  a  set  of  land  regu- 
lations providing  for  a  full  municipal  government  of  the 
three  concessions,  British,  American  and  French,  was 
adopted  in  a  public  meeting  of  the  land-holders.  ^  The  land 
regulations  were  revised  and  largely  amplified  in  1866  and 
with  sundry  lesser  modifications  still  remain  in  force.*    Be- 


»  Sen.  Ex.  Doc.  22,  p.  125,  158  (vol.  8),  35th  Cong.,  2d  Sess. 
'  The  American   consul-general,    Mr.   G.    F.    Seward,    took  a  leading 
part  in  the  framing  of  the  revised  regulations.     They  are  printed  in 


SHANGHAI   MUNICIPAL   REGULATIONS.    1866  169 

fore  the  regulations  of  1866  were  adopted,  the  French 
authorities  had  organized  and  they  have  since  maintained  a 
separate  municipality  upon  their  own  concession. 

The  land  reofulations  of  1866  consist  of  a  preamble  and  Reguia- 

°  ^  .       tlons  of 

twenty-nine  articles  with  appended  by-laws.  The  phrase  in  1866 
the  preamble,  which  recites  that  the  regulations  are  for  the 
'peace,  order  and  good  government^  of  all  persons  residing 
on  the  land  concessions,  is  the  common  form  in  which 
authority  has  been  given  to  British  ministers  to  provide 
regulations  in  countries  where  extraterritoriality  prevails; 
the  language  that  follows  declares  that  the  original  regula- 
tions, those  of  1854,  with  the  revision  of  1866,  rest  upon  the 
authority  of  the  ministers,  the  consuls  and  the  local  repre- 
sentative of  the  Chinese  government — the  authority  of  the 
consuls  and  the  Chinese  representative  in  respect  to  setting 
aside  land  for  the  residence  of  foreigners  being  stipulated  in 
the  British,  American  and  French  treaties  of  1843,  1844  and 
1845  respectively.  The  regulations  have  effect  and  are 
binding  upon  all  persons  residing  or  being  within  the  limits 
of  the  land  concessions. 

The  first  article  of  the  regulations  defines  the  boundaries   Descrip- 

.  tlon  of 

of  the  land  set  apart  for  rental  to  foreigners,   the  next   the  mu- 

nlcipal 
articles  pertain  to  the  methods  of  acquiring  land,  registering   organi- 

titles,  and  paying  the  ground  rent  to  the  Chinese  govern- 
ment, and  the  following  articles  to  the  apportionment 
and  collection  of  municipal  taxes.  It  is  provided  that  there 
shall  be  a  municipal  council  of  nine  members  elected  an- 
nually by  the  taxpayers  and  charged  with  the  general  admin- 
istration of  public  affairs;  the  council  has  power  to  appoint 
officials,  control  funds,  make  additional  by-laws  and  cause 
legal  action  to  be  taken  before  their  respective  consuls  or  the 
Chinese  authorities  against  persons  who  may  be  charged 
with  breach  of  the  regulations.  It  is  provided  that  no  mem- 
ber of  the  council  or  official  acting  under  authority  of  the 
regulations  shall  be  personally  liable  for  anything  done  for 


Dlpl.  Corr.  1867  pt.  1,  p.  429-48,  in  Sen.  Misc.  Doc.  89,  p.  179  (vol.  1),  47th 
Cong.,  1st  Sess.     See  also  Appendix  VI. 


zatlon 


170 


LEGAUTY  OF  THE  REGULATIONS 


Legal 
force  of 
the  muni- 
cipal   or- 
dinances 


the  purpose  of  executing  the  regulations;  but  the  council 
may  be  sued  as  a  body,  and  notice  to  the  chairman  is  to  be 
regarded  the  same  as  the  service  of  a  process.  The  court 
before  which  the  council  is  sued  is  no  longer  the  judicial 
officer  or  consul  of  the  defendant  at  Shanghai,  but  a  court 
consisting  of  three  consuls,  chosen  annually  by  the  consular 
body  in  that  city.^  It  is  also  provided  that  upon  the  requisi- 
tion of  ten  of  the  electors  of  the  municipal  council,  the  con- 
suls, collectively  or  singly,  may  summon  a  public  meeting  for 
the  consideration  of  anything  connected  with  the  interests 
of  the  municipality,  and  that  under  certain  limitations,  reso- 
lutions may  be  adopted,  which  shall  have  the  force  of  a 
municipal  regulation.  Finally,  the  senior  consul  is  to  re- 
quest the  taotai  to  direct  the  headmen  of  the  several  com- 
munities, guilds  and  the  like,  to  elect  annually  three  Chinese 
delegates,  with  whom  the  municipal  council  shall  consult 
concerning  the  affairs  of  the  native  communities.  The  by- 
laws resemble  municipal  ordinances  such  as  are  common  in 
the  cities  of  England  and  the  United  States.^ 

The  legality  of  the  municipal  ordinances  in  their  bearing 
upon  American  citizens  was  tested  in  1881  in  an  action 
brought  before  the  American  consular  court  by  the  muni- 
cipal council  against  a  Mr.  Eeid  to  compel  payment  of 
taxes.  The  defendant  denied  that  the  plaintiffs  were  a 
legally  constituted  body,  possessing  powers  of  taxation  over 
himself  and  his  property,  and  he  claimed  that  he  was  amen- 
able only  to  the  laws  enacted  by  the  United  States  Congress. 
The  plaintiffs  relied  for  the  legality  of  their  action  upon 
the  land  regulations  of  the  settlement  submitted  to  the 
foreign  ministers  at  Peking  and  approved  by  them  in  1869. 
But  the  defendant  disputed  the  authority  of  the  American 
minister  to  make  him  in  any  way  liable  to  the  demands  of 
the  municipal  council  of  Shanghai  or  any  other  such  body. 
The  consul-general,  sitting  as  judge,  gave  his  opinion  that 

» The  Court  of  Consuls  Rules  of  1882  are  printed  infra.  Appendix 
VII-1. 

'  The  municipal  council  publishes  an  annual  report.  In  1902  the  area 
of  the  concessions  was  said  to  be  eight  and  two-thirds  square  miles, 
and  the  mileage  of  roads,  76. 


CHINESE  JURISDICTION  LIMITED  171 

the  approval  of  the  land  regulations  and  the  municipal  or- 
dinances by  the  minister  and  indirectly  by  the  Department 
of  State  had  placed  them  under  the  sanction  of  the  treaties 
and  of  the  Acts  of  Congress  pertaining  to  foreign  jurisdic- 
tion, and  that  Mr.  Keid,  in  choosing  to  reside  within  the 
foreign  settlement  and  to  enjoy  the  advantages  of  a  well 
administered  municipality,  had  made  himself  liable  to  pay 
his  equitable  proportion  of  the  municipal  taxes.^  Upon  the 
same  grounds,  it  may  be  added,  the  legality  of  the  "municipal 
police  regulations  was  upheld  in  1887  in  instructions  by 
Secretary  of  State  Bayard.- 

One  of  the  most  important  questions  in  regard  to  the    Limita- 
settlement  is  the  precise  definition  of  the  jurisdiction  of   upon  the 
China  over  it.    In  conformity  with  the  treaties  China  retains   dVctfon  of 
territorial  jurisdiction  over  all  the  land  concessions  at  the   over%he 
various  ports.     The  treaties  under  which  foreigners  were   men^" 
permitted  to  rent  land  from  the  native  owners  stipulated 
neither  that  there  should  be  definite  areas  assigned  to  each 
of  the  treaty  powers  nor  that  the  right  of  renting  land  in 
any  way  involved  special  rights  of  jurisdiction.    The  British 
treaty  of  1843,  the  terms  of  which  were  repeated  in  the 
American  treaty  of  1841:  and  the  French  of  1845,  with  no 
essential  modifications  introduced  into  the  treaties  of  1858, 
provided  as  follows:    "Ground  and  houses,  the  rent  or  price 
of  which  is  to  be  fairly  and  equitably  arranged  for    .     .    . 
shall  be  set  apart  by  the  local  officers,  in  communication  with 
the  Consul;  and  the  number  of  houses  built,  or  rented,  will 
be  reported  annually  to  the  said  local  officers  by  the  Consul, 
for  the  information  of  their  respective  Viceroys  and  Govern- 
ors; but  the  number  cannot  be  limited,  seeing  that  it  will  be 
greater  or  less,  according  to  the  resort  of  merchants."  ^    Al- 
though the  arrangements  made  between  the  consuls  and  the 
local  officers  made  concessions  of  definite  areas  within  which 
this  right  of  renting  land  was  to  be  enjoyed,  they  did  not  and 
could  not,  since  they  were  not  of  the  nature  of  treaties,  ex- 


1  For.  Rel.  1882,  p.  123-32. 

*  Wharton,  Internat.  Law  Digest,  Appendix,  p.  852. 

3  Brit,  and  For.  State  Papers,  vol.  31,  p.  133. 


172  THE  CHINESE  COURTS  IN  SHANGHAI 

tend,  amplify  or  in  any  way  concern  extraterritorial  juris- 
diction. 

Yet  in  the  course  of  time  the  foreign  interests  at  Shang- 
hai have  become  so  large  and  their  protection  mutually  so 
desirable,  that  China  has  Mot  uniformly  insisted  upon  ex- 
ercising the  prerogatives  of  sovereignty.^  The  foreign 
municipality  has  thus  come  to  be,  in  all  essentials,  free  to 
govern  the  inhabitants  upon  the  concessions,  subject  to  the 
approval  of  the  various  consuls  and  ministers,  and  reserving 
to  these  consuls  and  to  Chinese  officials  the  hearing  of  cases 
and  execution  of  judgments  against  their  nationals.  In  time 
of  war,  as  in  the  Tonquin  war  of  188J:-5,  the  war  with 
Japan  in  1894-5,  and  the  war  of  190-i-5  between  Japan  and 
Eussia,  every  effort  to  keep  the  port  of  Shanghai  neutral  has 
been  successful.^ 
The  The  fact  that  China  retains  territorial  jurisdiction  over 

Chin6S6 

or  the  foreign  concessions  at  Shanghai  is  present  to  the  minds 

court  of  residents  there  in  the  operations  of  the  courts  in  which 

Chinese  defendants  are  tried.  There  is  a  Chinese  court  in 
the  Anglo-American  settlement  and  another  in  the  French. 
Each  of  these  courts  is  locally  known  as  a  'mixed'  court  for 
the  reason  that  while  a  Chinese  judge  presides  and  Chinese 
law  is  presumed  to  be  the  law  of  the  court,  whenever  a 
foreigner  is  a  party  to  the  cause,  some  consular  officer,  not 
necessarily  of  the  same  nationality  as  the  foreigner  con- 
cerned, sits  with  the  Chinese  judge  and  has  the  virtual  de- 
cision of  the  case  through  his  assenting  to  or  dissenting 
from  the  opinion  of  the  judge.  The  'mixed'  court  is  the 
busiest  of  all  courts  at  Shanghai  and  its  difficulties  are 
greatest.  Though  repeated  efforts  have  been  made  to  in- 
duce the  Chinese  government  to  introduce  improvements,  it 
has  not  yet  provided  either  a  satisfactory  code  of  law  or  a 
satisfactory  system  of  judicial  administration,  and  the  con- 

>  For  instance,  in  1900,  the  military  escort  of  Li  Hung  Chang  did 
not  pass  through  the  foreign  settlement,  because  the  municipal 
authorities  protested  that  the  Chinese  government  might  thus  estab- 
lish a  precedent  for  sending  Its  troops  into  the  city. 

-  For.  Rel.  1894,  Appendix  I,  p.  58;  see  also  For.  Rel.  1874,  p.  339;  1875, 
pt.   2,   p.   776. 


THE  SUPAO  CAjSB  173 

suls,  on  their  part,  usually  appoint  as  an  assessor  a  junior 
consular  officer,  selected  rather  for  his  knowledge  of  the 
Chinese  language  than  for  his  knowledge  of  law.^ 

In  1903  the  governor  of  the  province  in  which  Shanghai  is  The 
situated  undertook  to  suppress  a  revolutionary  society  whose  case 
journal,  the  Supao,  was  published  in  the  vernacular  within 
the  bounds  of  the  Anglo-American  municipality.  The  con- 
sular body,  before  allowing  warrants  for  the  arrest  of  the 
six  Supao  journalists  to  issue,  had  received  the  proposal  of 
the  taotai  that  the  accused  should  be  tried  within  the 
bounds  of  the  settlement,  and,  if  sentenced,  should  serve 
their  penalties  in  the  same  locality;  but  when  the  taotai 
learned  that  the  viceroy  at  Nanking  would  not  consent  to 
this  proposal,  he  endeavored  to  repudiate  his  agreement  and 
demanded  that  the  Chinese  be  delivered  up  at  once  to  be 
tried  whenever  and  wherever  it  might  please  the  govern- 
ment of  China.     About  a  year  earlier  than  this  event  the  r^i-eiimi- 

•'  nary  trial 

foreign  ministers  at  Peking  had  made  a  rule  that  no  accused  in  shang- 
person  arrested  within  the  settlement  should  be  given  up  to  quired 
the  Chinese  authorities  without  a  preliminary  trial  before 
the  '^mixed'  court,  a  process  resembling  the  preliminary  in- 
quiries in  extradition  proceedings.  During  the  delays  the 
imprisoned  journalists  again  wrote  seditious  articles  and  suc- 
ceeded in  publishing  them,  whereupon  the  'mixed^  court 
granted  an  injunction,  countersigned  by  the  senior-consul, 
sealing  the  Supao  office  and  presses.  The  municipal  police 
were  so  slow  to  enforce  the  order  that  the  Chinese  govern- 
ment was  convinced  of  the  unwillingness  of  the  municipal 


1  See  also  supra,  p.  85-6.  Rules  for  the  'mixed'  court  at  Shanghai, 
April  20,  1869,  Mayers,  Chinese  Treaties,  ed.  1897,  p.  236;  the  rules  are 
printed  infra.   Appendix  VII-2. 

An  amendment  to  these  rules  was  published  June  13,  1901,  by  the 
British,  American  and  German  consuls-general,  providing  that  a 
foreign  assessor  should  sit  in  the  'mixed'  court  in  all  cases,  including: 
those  to  which  natives  alone  were  parties.  This  amendment  appears 
to  be  contrary  to  the  treaties.  Amendments  proposed  in  1906  are 
printed  infra.  Appendix  VII-3. 

On  June  10,  1902  provisional  rules  were  adopted  defining  the  respec- 
tive jurisdiction  of  the  'mixed'  courts  of  the  International  and  French 
Settlements;  Brit.  Pari.  Papers,  1903,  vol.  Iv,  p.  603.  They  are  printed 
infra,  Appendix  VII-4. 


174  THE  JAPANESE   SPIES,   1895 

council  to  cooperate  in  proceeding  any  further  in  the 
matter.  Among  the  residents  on  the  settlement  there  was 
much  apprehension  lest  the  imperial  government,  if  it  should 
accomplish  its  purpose  in  this  instance,  might  use  the  inci- 
dent as  an  entering  wedge  for  eventually  claiming  the  right 
to  arrest  on  the  settlement  and  remove  at  will  any  Chinese 
subject  however  important  his  business  relations.  The  gov- 
ernment, on  the  other  hand,  claimed  that  without  drastic 
measures  Shanghai  would  become  a  hotbed  for  the  dis- 
semination of  revolutionary  ideas.  When  the  municipal 
council  undertook  to  communicate  with  the  foreign  minis- 
ters, it  was  informed  that  it  was  not  considered  to  have  any 
right  to  intervene,  that  such  matters  belonged  solely  to  the 
consular  and  diplomatic  officials.  For  several  months  things 
were  dead-locked.  The  British  minister  was  instructed  to 
refuse  the  surrender  of  the  Chinese  except  upon  the  findings 
of  the  'mixed'  court  approved  by  a  foreign  assessor;  but, 
without  consulting  an  assessor,  the  Chinese  magistrate  sen- 
tenced the  journalists  to  imprisonment  for  life.  Then  the 
ministers  at  Peking,  excepting  the  French  and  Euasian, 
joined  in  requiring  that  the  sentence  in  the  'mixed'  court  be 
annulled  and  the  case  reheard  with  the  approval  of  the  as- 
sessor. Finally,  notice  being  given  to  the  Chinese  author- 
ities that  unless  sentence  were  pronounced,  the  prisoners 
would  be  released  at  the  end  of  a  -month,  the  proceedings  of 
court  were  taken  in  regular  form  and  the  two  principal 
offenders  were  sentenced  to  hard  labor  with  subsequent  ban- 
ishment from  the  settlement.^ 

Case  of  At  the  outbreak  of  war  between  China  and  Japan  in  1894 

the 

Japanese    two  Japanese,  suspected  of  being  spies,  were  arrested  on  the 

French  concession  at  Shanghai.     China  had  acceded  to  the 

proposition  of  Japan  that  the  United  States  should  exercise 

friendly  offices  for  protection  of  Japanese  subjects  in  China 

during  the  war,  and  upon  this  ground  the  two  suspected  men 

were  placed  in  the  custody  of  the  American  consul-general 


>  North  China  Herald,  July  10,  1903,  p.  63,  99;  July  24,  p.  175;  August 
28,  p.  469,  and  May  27,  1904,  p.  1121. 


NEUTRALITY  OF  SHANGHAI  175 

pending  investigation.  The  Chinese  minister  at  Washington 
then  complained  that  the  consulate  was  giving  protection  to 
Japanese  spies.  The  State  Department  sent  telegraphic  in- 
structions to  release  the  Japanese  at  once,  that  the  consulate 
could  not  be  made  an  asylum  for  the  offenders,  and  that 
lending  friendly  offices  had  in  nowise  extended  the  privi- 
leges of  extraterritoriality.^ 

To  release  the  men  without  preliminary  investigation  be- 
fore the  Chinese  or  so-called  'mixed'  court  on  the  settle- 
ment, in  which  no  judgment  could  be  given  without  the  ap- 
proval of  the  foreign  assessor,  was  contrary  to  customary 
practice  in  time  of  peace.  The  ordinary  method,  as  pro- 
vided in  the  regulations  of  1869,  was  to  bring  before  this  tri- 
bunal all  Chinese  charged  with  crimes  or  misdemeanors  on 
the  settlement  and  all  foreigners  so  charged  not  protected 
by  treaty;  and  in  this  'mixed'  court  final  judgment  was  to 
be  given  except  in  case  of  certain  graver  offenses  punishable 
by  death  and  various  degrees  of  banishment,  which  were  to 
be  sent  up  for  revision  to  higher  Chinese  authorities.^ 

The  object  of  requiring  a  preliminary  investigation,  the 
result  of  which  the  foreign  assessor  may  or  may  not  ap- 
prove, is  to  prevent  Chinese  officials  from  interfering  with 
the  orderly  government  of  the  municipality  by  arresting  and 
removing  from  the  settlement,  without  due  cause,  Chinese  or 
others  who  may  have  important  connections  with  the  inter- 
ests of  foreigners. 

The  residents  within  the  concessions  desired  to  establish  Desire  of 

,       the  for- 

a  precedent  of  following  a  like  procedure  toward  the  sub-  eign  resi- 
jects  of  any  power  that  might  be  at  war  with  China.     If  preserve 
the  neutrality  of  the  settlement  were  not  thus  to  be  guarded,  ity 
an  outbreak  of  war  with  Great  Britain,  France,  the  United 
States,  Germany  or  Japan,  nations  largely  represented  at 
Shanghai,  would  bring  consternation  and  ruin  to  the  for- 
eign community  in  general.     During  the  Tonquin  war  be- 
tween  France   and   China,   Eussia  was   authorized   to   use 


1  Sen.  Ex.  Doc.  36,  p.  1-48.  (vol.  1) ;  For.  Rel.  1894,  p.  95-127,  372-6. 
"  Mayers,  Chinese  Treaties,  ed.  1897,  p.  236,  paragraph  3. 


176 


JURISDICTION  IN  THE  LEASED  AREAS 


Reten- 
tion of 
Chinese 
sover- 
eignty 
over  the 
leased 
areas 


friendly  offices  for  the  protection  of  Frenchmen  in  China, 
and  certain  of  them,  it  is  said,  being  arrested  in  SJianghai, 
were  actually  brought  before  the  Eussian  consul  for  hearing 
without  an  effort  on  the  part  of  China  to  interfere  in  any 
way. 

Eesponding  to  these  representations,  the  government  at 
Washington  declared  that  it  would  be  glad  to  see  an  ar- 
rangement made  between  China  and  other  interested  powers 
which  should  better  define  jurisdictional  rights  at  Shanghai, 
but  that  it  doubted  the  willingness  of  the  authorities  at 
Peking  to  yield  jurisdiction  of  subjects  of  a  belligerent  power 
suspected  of  cooperating  in  the  furtherance  of  hostilities 
against  China.  It  was  further  pointed  out  that  a  Japanese 
imperial  ordinance  had  been  issued  declaring  that  one  of  the 
first  results  of  the  state  of  war  was  to  suspend  the  conven- 
tional guaranties  of  extraterritoriality  as  between  the  two 
countries  and  to  make  Chinese  subjects  in  Japan  wholly 
amenable  to  the  jurisdiction  of  Japanese  courts;  and  it  was 
thought  that  China  was  therefore  entitled  reciprocally  to 
assert  jurisdiction  over  Japanese  in  that  country. 

In  1897  and  1898  China  made  leases  of  the  ports  of 
Kiaochow,  Port  Arthur  and  Talienwan,  Weihaiwei  in  North 
China  and  Kuang-Chow  Wan  in  South  China,  to  Germany, 
Eussia,  Great  Britain  and  France,  respectively.  According 
to  the  terms  of  the  lease  of  Kiaochow  to  Germany  "China 
retains  her  sovereignty  over  this  territory,"  yet,  "during  the 
continuance  of  the  lease  China  shall  have  no  voice  in  the 
government  or  administration  of  the  leased  territory."  ^  The 
Eussian  lease  of  Port  Arthur  and  Talienwan  was  not  to 
"prejudice  China's  sovereignty"  over  that  territory,  yet 
Eussia  claimed  jurisdiction  and  actually  tried  Chinese  for 
crimes  against  Eussians.  The  British  lease  of  Weihaiwei 
was  to  continue  as  long  as  Port  Arthur  should  "remain  in 
the  occupation  of  Eussia,"  and  within  the  territory  of  Wei- 
haiwei Great  Britain  was  to  have  "sole  jurisdiction,"  yet 
within  the  walled  city  of  Weihaiwei  "Chinese  officials,"  so 


» Staatsarchlv,  vol.  61,  p.  1. 


POMC'Y  OF  JAPAN 


177 


reads  the  treaty,  "shall  continue  to  exercise  jurisdiction, 
except  so  far  as  may  be  inconsistent  with  naval  and  military 
requirements  for  the  defense  of  the  territory  leased."  ^ 

The  question  whether  the  leasing  of  these  areas  to  Euro- 
pean states  had  caused  extraterritorial  jurisdiction  in  them 
to  cease  was  answered  by  the  powers,  excepting  Japan,  in 
the  affirmative.  The  ground  of  decision  taken  by  the 
government  at  Washington  was  that  the  mention  of  China's 
retaining  sovereignty  appeared  to  have  been  made  merely 
with  the  intention  of  cutting  off  possible  future  claims  of 
the  lessees  that  the  sovereignty  over  the  territory  had  been 
permanently  invested  in  them,  and  the  fact  that  the  terms 
of  the  leases  admitted  the  exercise  of  European  jurisdiction 
implied  that  China  had  intended  to  retain  and  could  retain 
only  a  nominal  and  limited  jurisdiction.  With  this  opinion 
of  the  solicitor  of  the  department  before  him,  the  Secretary 
of  State  gave  instructions  that  consuls  in  whose  districts 
the  leased  areas  had  formerly  lain  should  not  exercise  any 
consular  functions  in  them  until  exequaturs  recognizing 
their  official  character  had  been  obtained  for  them  from  the 
respective  European  governments.  It  was  not  expected  that 
these  exequaturs  would  include  the  right  to  exercise  extra- 
territorial jurisdiction.^ 

The  Japanese  government  claimed  that  jurisdiction  was 
an  essential  feature  of  sovereignty  and  could  not  pass  with 
a  mere  lease,  and  that  Japan  had  no  agreement  with  China 
under  which  China  could  grant  to  foreign  powers  juris- 
diction over  Japanese  subjects  and  their  property  in  Chinese 
territory.  Japan  therefore  declined  to  admit  Eussian  juris- 
diction over  a  Japanese  subject  arrested  at  Port  Arthur 
upon  suspicion  of  being  a  military  spy,  and  the  Eussian  gov- 
ernment yielded  to  Japan  so  far  as  to  order  that  the  suspect 
be  delivered  to  Japanese  authorities. 


Suspen- 
sion of 
foreign 
Juris- 
diction 
In  the 
leased 
areas 


Japan 
claims 
retain 
Juris- 
diction 


to 


'  Brit,  and  For.  State  Papers,  vol.  90,  p.  16;  see  also  For.  Rel. 
1900,  p.   382-90. 

2  For.  Rel.  1900,  p.  382.  See  also  For.  Rel.  1898,  p.  182,  533;  1899,  p.  128; 
1903,  p.  84, 


VII 


GROUNDS  OF  RELINQUISHING  JURISDICTION 


The    ex- 
tension 
of    Euro- 
pean sov- 
erel(?nty 
leading 
to  cessa- 
tion of 
juris- 
diction 


Reten- 
tion of 
native 
law  In 
Euro- 
pean 
colonies 


When  any  portion  of  oriental  territory  comes  into  the 
absolute  possession  of  a  European  power,  as  when  Hongkong 
was  ceded  to  Great  Britain  in  1841,  when  Madagascar  was 
declared  a  French  colony  in  1896  and  when  the  extreme 
eastern  and  western  districts  of  Turkey  passed  under  Eus- 
sian  and  Austrian  dominion  in  1878,  the  necessity  of  extra- 
territorial protection  in  such  a  region  is  at  an  end.  The 
sovereignty  of  the  European  states  extends  to  its  new  pos- 
session, and  an  incident  of  this  sovereignty  is  the  obligation 
to  administer  justice  in  conformity  with  western  con- 
ceptions of  justice. 

This  extension  of  European  sovereignty  obviously  in- 
volves the  necessity  of  preserving  much  native  law  and  cus- 
tom. Such  is  the  condition  of  things  in  British  East  India 
where  a  very  ancient  and  elaborate  system  of  native  law, 
much  of  it  Mohammedan,  exists  side  by  side  with  the  com- 
mon law  and  the  statutes,  so  far  as  these  have  been  ex- 
tended to  East  India  by  Act  of  Parliament.^  Similarly  in 
Algiers,  where,  although  extraterritorial  jurisdiction  ceased 
in  1830  when  the  Dey  of  Algiers  surrendered  the  city  to 
the  commander  of  the  French  army,  and  although  in  1870 
the  country  was  made  into  departments  of  France 
coequal  with  the  departments  in  Europe,  both  the  ancient 
Mohammedan  law  and  law  of  French  origin  are  adminis- 
tered even  to-day  in  French  and  native  courts.*    In  Mada- 


» Ilbert,  The  Government  of  India.  Oxford,  189S.  p.  124;  Strachey, 
India,  Its  Administration  and  Progress,  London,  1903,  p.  91. 

2  Leroy-Beaulieu,  L'  Algerie  et  la  Tunisie,  Paris,  1887,  p.  266.  The 
conquest  of  Algiers  was  not  complete  until  1857. 


FRENCH  OCCUPATION  OF  MADAGASCAR  179 

gascar  also  there  is  a  double  system  of  courts,  French  and 
native,  but  in  Madagascar,  as  well  as  in  Algiers,  the  rights 
of  foreigners  are  adjudicated  only  in  courts  presided  over 
by  French  judges.^ 

It  is  important  to  distinguish  the  effect  of  outright  Military 
change  of  sovereignty  from  that  of  mere  military  occupa-  P^t'o^g 
tion.  When  a  French  army  had  completed  the  conquest  of  P^^sio^_ 
Madagascar,  the  Malagasy  Queen  was  obliged  to  sign  a  diction 
treaty  on  October  1,  1895,  recognizing  a  French  protectorate 
over  the  island.  About  six  months  later,  while  changes  in 
the  political  relations  of  France  and  Madagascar  were  ap- 
parently leading  toward  annexation,  the  French  govern- 
ment, through  its  ambassador  at  Washington,  expressed  the 
desire  that  instructions  be  issued  looking  to  the  discon- 
tinuance of  jurisdiction  in  the  American  consular  court. 
In  reply,  the  Secretary  of  State,  Mr.  Olney,  requested  a  cate- 
gorical statement  that  French  sovereignty  had  been  estab- 
lished. At  the  same  time  the  American  consul  was  author- 
ized to  suspend  until  further  instructed  the  exercise  of 
judicial  functions  in  all  cases  where  cooperation  of  an  es- 
tablished French  court  was  available  for  disposition  of  ju- 
dicial cases  affecting  American  citizens.  On  August  6,  1896, 
the  French  National  Assembly  declared  Madagascar  a  colony 
of  France.  This  act  was  considered  by  the  American  gov- 
ernment as  implying  the  abrogation  of  its  treaty  with  Mada- 
gascar of  May  13,  1881,  and  as  substituting  for  it  the 
treaties  between  the  United  States  and  France.  By  ar- 
rangements between  the  two  governments  the  jurisdiction 
continued  until  matters  were  settled  that  were  pending  in 
court  on  the  following  October  16,  the  date  when  the  resi- 
dent-general declared  the  French  courts  open.-  The  atti- 
tude of  the  British  government  resembled  that  of  the 
American  in  respect  to  desiring  of  France  an  explicit  dec- 
laration that  Malagasy  sovereignty  was  extinct  and  French 
sovereignty  substituted  in  its  place  before  it  would  recog- 

1  Leroy-Beaulleu,    De  la   colonisation     chez    les    peuples    modernes, 
5th  ed.,  Paris,  1902,  vol.  1,  p.  475-80. 

2  For.   Rel.   1896,  p.  126,  133;  1897,   p.  152. 


Samoa 


180  SAMOA,  TURKEY 

nize  the  abrogation  of  treaty  relations  with  Madagascar  and 
thus  relinquish  its  foreign  Jurisdiction,^  Until  such  a  dec- 
laration was  made,  the  effect  of  military  occupation  was 
only  to  enable  France  to  obtain  a  suspension  of  jurisdiction. 
When,  however,  during  an  armed  conflict  between  Germany 
and  one  of  the  rival  chiefs  of  the  Samoan  Islands  in  1899, 
the  German  naval  commander  proclaimed  martial  law,  the 
American  Secretary  of  State,  Mr.  Bayard,  instructed  the 
minster  at  Berlin  to  inform  the  German  Foreign  Office  that 
the  United  States  expected  that  German  officials  in  Samoa 
would  be  instructed  scrupulously  to  abstain  from  all  inter- 
ference with  American  citizens  and  their  property  in  Samoa, 
that  no  assumption  or  extension  of  German  jurisdiction 
over  American  citizens  or  their  property  would  be  caused 
by  the  German  declaration  of  martial  law,  and  that  no  such 
jurisdiction  would  be  recognized  or  conceded  by  the  United 
States.2  -Q^i  JQ  yiew  of  the  peculiar  complications  of  Samoan 
affairs  then  and  later,  this  incident  cannot  rightly  be  re- 
garded as  establishing  a  precedent  contrary  to  the  policy 
pursued  in  Madagascar.  "When  the  Russian  army  ap- 
Turkey  proached  Constantinople  in  1877,  the  city  was  placed  under 
military  government,  but  consular  jurisdictional  authority 
was  not  suspended.^  The  military  occupation  of  Manchuria 
by  the  armies  of  Japan  and  Eussia  did  not,  it  is  believed, 
affect  consular  jurisdictional  rights  except  to  cause  their 
temporary  suspension  in  localities  where  active  military 
operations  were  going  on. 
Juris-  In  respect  to  retaining  or  relinquishing  jurisdiction  in 

eS?o°''^''  territories  that  have  become  protectorates  of  European 
tl^tOT?'"**"  powers,  a  diversity  of  practice  has  existed.  Although  Great 
Britain  formally  recognized  the  protectorate  of  France  over 
Madagascar  in  1890,  it  was  not  until  1896,  when  Madagascar 
became  a  French  colony,  that  Great  Britain  relinquished 
jurisdiction,  and  then  only  upon  the  condition  that  France 
reciprocate  by  renouncing  its  jurisdictional  rights  in  British 

»  Brit,  and  For.  State  Papers,  vol.  89,  p.  1082. 
'  For.   Rel.   1889,  p.  191. 
«  For.  Rel.  1877,  p.  580. 


ates 


PROTECTORATES  181 

Zanzibar.'  Without  formal  recognition  of  the  French  protec- 
torate over  Madagascar  the  United  States  also  declined  to 
relinquish  jurisdiction  so  long  as  Madagascar  was  a  pro- 
tectorate, with  no  French  courts  established  and  available 
for  the  disposition  of  cases  affecting  American  citizens.  A  Tunis 
different  policy  was  followed  when  the  French  protectorate 
over  Tunis  was  announced  in  1881.  Tunis  is  believed  still 
to  remain  a  protectorate,  and  relations  with  it  are  controlled 
through  the  foreign  office,  but  in  1883  Great  Britain  relin- 
quished jurisdiction  by  Order  in  Council  and  other  European 
governments  have  relinquished  it  by  legislation  or  by  con- 
vention with  France.^  The  American  Secretary  of  State, 
Mr.  Frelinghuysen,  referred  the  matter  to  Congress  with 
the  result  that  a  joint-resolution  was  passed  authorizing  the 
President  to  issue  a  proclamation  relinquishing  jurisdiction 
whenever  in  his  judgment  a  system  of  justice  was  estab- 
lished in  Tunis  under  which  the  rights  of  American  citizens 
would  be  fully  and  permanently  protected;  but  such  a 
proclamation  was  not  made,  and  it  was  not  until  a 
special  convention  between  France  and  the  United  States 
m  regard  to  Tunis  was  effected  on  March  15,  1904,  that  the 
United  States  formally  relinquished  jurisdiction.^  The 
United  States  relinquished  jurisdiction  in  Zanzibar  also, 
which  had  been  a  British  protectorate  since  1890;*  and  to 
this  end  a  convention  with  Great  Britain  was  signed  Feb- 
ruary 25,  1905,  to  take  effect  when  other  nations  shall  have 
likewise  renounced  extraterritorial  privileges  therein.^ 

As  to  other  protectorates,  namely,  Borneo,  whose  entire  Borneo, 
territory  was   converted  into   the   British   protectorate   of 

»  Brit,   and  For.    State  Papers,   vol.    89,   p.    1082. 

'Brit,  and  For.  State  Papers,  vol.  74,  p.  694;  vol.  75,  p.  469,  1007, 
1166,  1271.  The  number  of  British  subjects  from  Malta  residing 
in  Tunis  in  1863  had  been  estimated  at  10,000;  in  that  year  they 
were,  by  convention,  made  subject  to  the  law  of  Tunis  in  regard 
to  their  real  property  in  that  country;  Dipl.  Corr.  1864-5,  pt.  4, 
p.   437;  1868,  pt.  2,  p.   174. 

•For.  Rel.  1883,  p.  483;  Congressional  Record,  47th  Cong.,  2d 
Sess.,  vol.  14,  pt.  1,  p.  440,  455,  710;  pt.  4,  p.  3660;  Compilation  of 
Treaties  in  Force,  Sen.  Doc.  318,  p.  949  (vol.  37)  58th  Cong., 
2d  Sess. 

*  Brit,  and  For.  State  Papers,  vol.  82,  p.  653. 

•Archives  diplomatiques,  1905,  pt.   iii,   p.  262-4;  see  also  supra,  p.  20. 


182  NEWLY  INDEPENDENT  STATES 

North  Borneo,  and  the  Dutch  protectorates  of  East,  South 
and  West  Borneo  in  1891;^  and  Tonga,  which  was 
made  a  British  protectorate  in  1899  and  at  length 
became  essentially  a  British  possession  in  1904^ — the 
United  States  has  taken  no  action  whatever  toward  relin- 
quishing its  treaty  rights  of  jurisdiction.  But  in  view  of 
the  practice  of  European  governments  and  of  the  recent  sus- 
pension of  jurisdiction  in  the  leased  areas  of  North  China, 
it  may  be  assumed  that  the  United  States  would  either  re- 
tain, suspend  or  relinquish  jurisdiction  in  a  protectorate  ac- 
cording to  the  extent  to  which  the  protecting  power  actually 
undertook  the  administration  of  justice  in  it.  Another 
determining  factor  in  European  practice  is  the  degree  of 
reciprocity  shown  with  respect  to  withdrawing  jurisdiction 
in  protectorates,  for  example,  the  British  withdrawal  of 
jurisdiction  from  Madagascar  in  return  for  French  with- 
drawal from  Zanzibar,  and  the  British  withdrawal  of  juris- 
diction from  Samoa  in  return  for  German  withdrawal  of  it 
from  Tonga.^ 
Juris-  When  a  portion  of  an  oriental  country  has  become  inde- 

in  newly  pendent,  as  when  Greece,  Servia  and  Eoumania  separated 
pendent  themselves  from  Turkey  and  established  new  governments, 
the  question  of  retaining  or  discontinuing  extraterritorial 
jurisdiction  in  them  has  been  determined  by  general  acts  of 
the  powers,  with  subsequent  action  by  each  power  for  itself. 
The  powers  did  not  specifically  relinquish  jurisdiction  in  the 
main  acts  relating  to  the  establishment  of  independent  gov- 
ernment in  Greece,  and  the  question  does  not  appear  to  have 
been  regarded  as  important.  By  the  general  act  of  the  Con- 
gress of  Berlin  of  1878,  recognizing  the  independence  of 
Servia  and  Eoumania,  it  was  provided  that  the  extraterri- 
torial rights  secured  by  the  capitulations  from  the  Ottoman 
Porte  should  continue  in  force  in  these  principalities  until 
modified  by  mutual  consent  with  each  foreign  power  con- 
cerned.    The  United  States  made  treaties  with  Servia  and 

•  Brit,     and     For.     State    Papers  vol.  83,  p.  41. 

'  As  a  matter  of  fact  the  United  States  never  exercised  any  of  its 
jurisdictional  rights  under  the  treaty  with  Tonga  of  October  2,  1886. 
« Brit,    and   For.    State   Papers,     vol.   92,   p.   1063,   1064. 


THE  DANUBIAN  STATES  183 

Eoumania  in  1881.  The  Roumanian  treaty  contains  no  ex- 
plicit renunciation  of  extraterritoriality.  The  Servian 
treaty  made  a  qualified  renunciation  under  which  the  United 
States  retained  jurisdiction,  except  as  to  real  estate,  in 
mixed  cases  involving  other  foreigners  whose  governments 
should  not  have  renounced  jurisdiction.  This  provision  had 
only  a  temporary  effect,  for  jurisdiction  was  soon  re- 
linquished by  Austria,  France  and  Great  Britain,  and  in 
1886  Servia  and  Turkey  entered  into  a  convention  mutually 
relinquishing  extraterritoriality  each  in  the  territory  of  the 
other.  In  an  earlier  instance,  that  of  the  independence  of 
Greece  in  1830,  the  regime  of  the  capitulations  was  not  con- 
tinued, for  the  reason,  apparently,  that  the  new  kingdom 
was  placed  under  the  protection  of  Great  Britain,  France 
and  Eussia.  The  United  States  recognized  the  independ- 
ence of  Korea  by  making  a  treaty  with  its  government  on 
May  22,  1882,  and  in  the  same  treaty  stipulated  for  extra- 
territorial jurisdiction  in  terms  which,  though  they  do  not 
refer  to  continuance  of  jurisdiction  like  that  enjoyed  in  the 
Chinese  empire,  establish  a  system  closely  resembling  it. 
When,  therefore,  a  new  oriental  nation  has  come  into  exis- 
tence by  separation  from  Turkey,  as  Servia  and  Eoumania 
became  separate  in  1878,  the  regime  of  the  capitulations 
has  been  made  to  continue.  Greece  was  a  protected  state; 
and  in  Korea,  while  the  jurisdiction  was  newly  set  up,  it  was 
made  closely  to  resemble  what  existed  in  China  and  Japan. 

The  one  nation  of  the  East  which  has  so  developed  its   The  es- 
svstem  of  jurisprudence,  adapted  and  codified  its  laws  and   ment  of 

.  -■      •,  n        •      •    X      \-  J!      ■        I.-  X  '  4.-L         Judicial 

improved  its  administration  oi  justice,  as  to  convince  tne  auton- 
western  states  of  the  advisability  of  withdrawing  their  japan 
foreign  jurisdiction,  is  Japan.^  About  ten  years  after  the 
making  of  the  commercial  treaties,  Japan  emerged  from  a 
civil  war  in  which  the  long  domination  of  the  military  and 
feudal  classes  was  overthrown.  The  war  had  brought  to  the 
leadership  of  the  nation  a  group  of  very  able  men  united  in 
loyalty  to  the  highly  intelligent  and  progressive  Emperor 
Mutsuhito. 

» The  progress  of  Japan  toward  judicial  autonomy  Is  described  In 
Foster,  American  Diplomacy  in  the  Orient,  Boston,  1903,   p.  344-64. 


184 


NATIONAL  DEVELOPMENT  OF  JAPAN 


The   em- 
bassy of 
1872  to 
Amer- 
ica  and 
Europe 


The 
modem 
national 
govern- 
ment 


In  1872,  at  the  end  of  the  stipulated  period  of  fourteen 
years  when  negotiations  for  the  revision  of  the  treaties  was 
to  be  undertaken  at  the  desire  of  either  party,  the  Emperor 
sent  a  large  embassy,  consisting  of  Prince  Iwakura,  who  was 
minister  of  foreign  afEairs,  and  the  statesmen  Kido,  Okuba, 
Ito,  Yamagutsi  and  others,  to  America  and  Europe  in  order 
that  they  might  study  western  institutions  and  propose  re- 
vision of  the  treaties.  But  the  existing  treaties,  with  their 
low  customs  tarifE  of  five  per  cent.,  were  considered  more 
advantageous  by  the  western  powers  than  any  new  treaties 
likely  to  be  accepted  by  Japan.^  Moreover,  while  there  were 
prospects  of  improving  the  Japanese  system  of  jurispru- 
dence by  adoption  of  western  principles  of  law,  they  were 
still  far  from  being  ready  to  place  in  practice. 

Therefore  the  only  course  open  to  the  Japanese  leaders, 
who  realized  that  their  nation  would  suffer  'oppression  by 
treaty,'  if  the  treaties  of  1858  continued  in  force,  was  to 
develop  the  national  institutions  until  they  should  command 
the  respect  of  the  western  powers.  This  they  accomplished 
through  the  ever  increasing  influence  of  merchants  and 
others  who  were  adopting  western  ways  in  the  management 
of  various  enterprises;  moreover,  encouragement  in  the 
publication  of  newspapers  was  given  and  a  national  system 
of  education  instituted.  In  1875  the  Emperor  convoked 
popular  assemblies  to  which  he  confided  responsibility  for 
local  government.  Meanwhile  the  administration  of  the 
central  government  was  remodelled.  For  this  purpose  the 
services  of  able  and  experienced  officials  under  other  govern- 
ments were  retained  by  Japan,  among  them  several  Ameri- 
cans in  the  departments  of  education,  the  postoffice,  the 
treasury  and  the  foreign  office.  With  the  assistance  of 
foreign  jurists  the  laws  were  revised  and  the  courts  reorgan- 
ized.   The  new  codes  of  criminal  law  and  procedure  followed 


» The  principal  treaty  concluded  subsequently  to  those  of  1858  was 
the  Austro-Hungarian  treaty  of  October  18.  1869.  Its  original  text  was 
in  English.  Its  provisions  benefitted  the  other  powers  through  the 
operation  of  most-favored-nation  clauses  in  their  treaties;  Neumann 
and  De  Plason,  Receuil  des  traltfis  et  des  conventions  conclus  par 
TAutriche,  vol.   6,   p.   427;    Brit,    and   For.    State  Papers,   vol.   59,   p.   529. 


THE  TOKIO  CONFERENCES,  1886  185 

the  model  of  the  codes  of  France,  the  codes  of  civil  and  co-m- 
mercial  law  and  civil  procedure  the  codes  of  Germany. 
These  codes  came  into  operation  gradually.  They  acquired 
full  force  in  1899.^  The  constitution  of  the  Japanese  em- 
pire had  been  promulgated  in  1889.^ 

There  was  naturally  some  doubt  among  foreigners  resi-   Jhe^^^^ 
dent  in  Japan  whether  the  Japanese  government  would  be    en^ea^^ 
able  to  secure  to  them  under  new  treaties,  and  without  the 
operation  of  consular  courts,  the  same  degree  of  protection 
they  were  enjoying  under  the  treaties  of  1858.^     Notwith- 
standing the  continued  protests  of  Japan  against  the  irregu- 
larities and  evils  of  the  extraterritorial  system,  the  Euro- 
pean governments  had  again  in  1878  refused  to  consider  re- 
vising the  treaties.    In  that  year,  however,  the  United  States 
made    a   treaty   conditionally   acknowledging   the   right   of 
Japan  over  her  own  import  tariffs.     In  1886  Count  Inouye 
called  a  conference  of  the  foreign  ministers  at  Tokio  and, 
after  deliberations  prolonged  into  the  following  year,  finally 
ventured,  upon  his  own  responsibility,  to  concede  that  for 
all  trials  involving  foreigners  there  should  be  a  court  made 
up  of  a  majority  of  foreign  judges  sitting  with  the  Japanese 
judges.    The  foreign  ministers  then  demanded  the  right  to 
choose  these  foreign  judges  and  to  prescribe  what  law  and 
procedure  and  what  manner  of  executing  judgments  should 
be  followed.    At  this  there  was  an  outburst  of  general  indig- 
nation among  the  Japanese,  and  Count  Inouye  lost  his  lead- 
ership in  politics.    During  the  conference  the  American  gov-  The 
ernment  had  shown  a  friendly  attitude  by  concluding  the  states 
treaty  of  extradition  of  April  29,  1886.    In  submitting  it  to  able 

» Parliamentary  Papers,  1894,  vol.  xcvl,  Japan  No.  1,  p.  94.  Kaneko, 
Les  Institutions  judlciaires  du  Japon,  Revue  du  droit  intemat.  1893,  p. 
338;  Okamura,  Progress  of  the  Judicial  System  of  Japan,  Jour.  Soc. 
Compar.  Legislation,  1899,  p.  46;  Hatoyama,  The  civil  code  of  Japan 
compared  with  the  French  civil  code,  11  Yale  Law  Jour.,  296,  363; 
Masujima,  The  Japanese  legal  seal,  and  Modern  Japanese  legal  Insti- 
tutions, Transactions,  Asiatic  Soc.  of  Japan,  vol.  17,  p.  102,  and  vol.  18, 
p.  229. 

2  For.   Rel.  1889,   p.  535. 

'  Such  apprehension  was  expressed  by  American  and  British  resi- 
dents In  Japan  even  as  late  as  the  year  preceding  the  Inception  of 
the  new  treaties;  For.  Rel.  1898,  p.  450;  see  also  Parliamentary  Papers, 
1894,  vol.  xcvl,  Japan  No.  1,  p.  144. 


186  NEGOTIATION'S  WITH  GREAT  BRITAIN 

the  Senate,  President  Cleveland  said  that  the  treaty  had 
been  made  partly  because  of  the  support  which  its  con- 
clusion would  give  to  Japan  in  her  efforts  towards  judicial 
autonomy  and  complete  sovereignty.^ 
Nego-  The  draft  of  a  treaty  proposed  by  Count  Okuma  for  Ja- 

t^at^ons  p^^  ^^  ^^^  Marquis  of  Salisbury,  the  British  Secretary  of 
BrftaJn  State  for  Foreign  Affairs,  in  1889,  contemplated  that,  for  a 
period  of  five  years  from  the  conclusion  of  the  treaty,  con- 
sular jurisdiction  should  be  territorially  limited  to  the  six 
foreign  settlements,  and  to  the  open  ports  and  other  local- 
ities in  which  foreigners  were  permitted  to  reside;  that  out- 
side of  these  localities  Japan  should  have  full  jurisdiction, 
and  that  upon  the  expiration  of  the  five  year  period  consular 
jurisdiction  and  extraterritorial  privileges  were  to  cease 
throughout  the  territory  of  Japan,  and  the  Japanese  courts 
were  thereafter  to  assume  and  exercise  full  jurisdiction. 
The  proposed  treaty  was  to  contain  rules  for  further  deter- 
mining the  jurisdiction  of  the  Japanese  and  British  courts 
during  the  five  year  period.  In  advance  of  the  abolition  of 
the  consular  courts,  British  subjects  were  to  be  permitted  to 
submit  to  the  jurisdiction  of  Japanese  courts  by  filing  writ- 
ten declarations  of  their  desire  at  the  British  consulates.  It 
was  also  proposed,  in  the  draft  of  a  diplomatic  note,  that 
Japan  should  appoint  a  number  of  foreign  jurists  to  act  in 
the  capacity  of  judges  in  the  Supreme  Court  of  Japan.  The 
British  counter-draft  of  the  treaty  and  of  the  diplomatic 
note  contained  essentially  the  same  provisions,  but  expressed 
them  in  entirely  different  language.-  Some  months  later 
Viscount  Aoki,  Minister  of  Foreign  Affairs,  informed  the 
British  minister  at  Tokio,  Mr.  Fraser,  that  his  government 
desired  the  elimination  from  the  proposed  treaty  of  the  pro- 
vision for  foreign  judges  in  the  Japanese  tribunals,  and,  as 
reasons  for  this  change,  it  was  shown  that  the  adoption  of 
this  measure  would  cause  the  vesting  of  rights  and  the 
growth  of  usages  which  it  would  be  as  difficult  to  modify  as 


»  Sen.  Ex.  Jour.,  vol.  25,  p.  495. 

» Parliamentary  Papers,  1894,  vol.  xcvi,  Japan  No.  1,  p.  2-24. 


ATTITUDH  OP  OTHER  POWERS  187 

were  the  treaties  of  1858,  and  that  the  judicial  organization 
of  Japan  would,  at  the  end  of  the  five  year  period,  be  of 
nearly  a  quarter  of  a  century's  standing,  with  perfect  inde- 
pendence and  permanence  under  the  guarantees  of  the  con- 
stitution of  1889.  Japan  desired  also  that  the  proposed 
stipulations  concerning  the  codification  and  promulgation  of 
the  laws  of  the  Empire  and  the  stipulations  granting  the 
right  to  acquire  real  estate  should  be  withdrawn,  and  that 
reservation  in  reference  to  the  right  of  aliens  to  be  placed 
upon  a  national  footing  should  be  introduced.  The  counter 
proposal  by  Lord  Salisbury  of  June  5,  1890,  consisted  of  a 
commercial  treaty  with  a  protocol  annexed,  providing  for 
the  cessation  of  jurisdiction  at  the  expiration  of  a  minimum 
period  of  five  years  upon  condition  that,  before  the  juris- 
diction should  be  discontinued,  the  Japanese  codes,  then 
being  elaborated,  should  have  been  in  satisfactory  operation 
for  a  continuous  term  of  twelve  months. 

While  negotiating  with  Great  Britain  as  the  power  whose  Final 
interests  predominated,  the  Japanese  government  had  also  tions 
made  propositions  of  treaty  revision  to  the  United  States, 
Eussia  and  Germany.  The  American  government,  while  dis- 
posed to  be  favorable  to  the  project  of  revision,  regarded 
the  favorable  action  of  Great  Britain  as  essential  to  its  suc- 
cess, and  in  reliance  upon  this  friendly  attitude  of  the  United 
States,  Japan  had  made  her  chief  efforts  with  Great 
Britain.  Eussia,  it  was  believed,  was  willing  to  accept  a 
treaty  resembling  the  British  draft  of  1889,  while  Germany 
insisted  upon  its  own  form  of  convention.  ^  The  principal 
causes  of  delay  in  the  latter  part  of  the  negotiations  appear 
to  have  been  the  postponement  of  placing  the  new  code  fully 
in  operation  and  the  changes  in  the  political  leadership  and 
the  ministry.  The  British  treaty,  essentially  following  the 
draft  of  June  5,  1890,  but  including  the  provision  for  relin- 
quishment of  jurisdiction  in  the  body  of  the  treaty  instead 
of  in  a  protocol,  was  signed  at  London,  July  16,  1894,  by 
Lord  Kimberley  and  Viscount  Aoki.     The  American  treaty 

1  Parliamentary  Papers,  1894,  vol.  xcvi,  Japan  No.  1,  p.  68. 


188 


EFFORT  OF  TURKEY  TO  ABROGATE 


The 

efforts  of 
Turkey 
to  have 
the 

foreign 
juris- 
dictional 
rights 
abro- 
gated 


'La 

Question 
des 

capitu- 
lations' 


was  signed  at  Washington  by  Mr.  Gresham,  Secretary  of 
State,  and  ]\Ir.  Shinichiro  Kurino,  the  Japanese  minister, 
November  22,  1894.  All  of  the  treaties  of  this  group,  ex- 
cept the  French,  came  into  operation  on  July  17,  1899. 

The  question  of  abrogating  extraterritorial  privileges  in 
Turkey  was  considered  at  the  Congress  of  Paris  in  1856. 
The  British,  French,  Prussian  and  Sardinian  plenipoten- 
tiaries were  disposed  to  favor  revision  of  the  capitulations. 
The  plenipotentiaries  of  Turkey  represented  that  the  juris- 
dictional privileges  of  foreigners  were  an  obstacle  to  the  im- 
provement of  the  administration  of  justice  in  their  country. 
The  plenipotentiaries  of  other  powers  thought  extreme  cir- 
cumspection necessary,  and  declared  that  an  actual  and  per- 
manently established  reform,  rather  than  those  announced, 
should  be  regarded  as  the  proper  guaranty  for  proposing 
changes  in  the  extraterritorial  privileges.  The  outcome  of 
the  discussion  was  simply  that  the  congress  recorded  a  desire 
for  the  calling  of  a  conference  at  Constantinople  to  deliber- 
ate further  upon  the  question.  ^  Such  a  conference  never 
assembled.  A  few  years  later  the  disposition  of  the  powers 
to  retain  their  jurisdictional  rights  in  Turkey  was  shown  in 
the  numerous  commercial  treaties  which  corresponded  in 
substance  and  approximately  in  time  with  the  treaty  of 
February  25,  1863,  between  the  United  States  and  the  Otto- 
man Porte,  the  first  article  of  which  provided  that  all  rights, 
privileges  and  immunities  which  had  been  conferred  by  the 
treaty  of  1830,  excepting  certain  specified  rights  not  con- 
nected with  jurisdiction,  were  confirmed  then  and  forever. 

But  since  1856  Turkish  diplomacy  has  never  been  at  rest 
upon  this  subsidiary  'eastern  question,'  commonly  known  in 
continental  Europe  as  'la  question  des  capitulations.'  - 
The  Porte  doubtless  had  the  abolition  of  the  privileges  in 
mind  when  in  1867  it  conceded  the  right  of  foreigners  to 


>  Protocol  of  March  25,  1856. 

'  Pradier-Fod4r6,  La  question  des  capitulations,  Rev.  de  droit 
internat.  1869,  p.  118;  see  also  Brunswik,  filudes  pratiques  sur  la 
question   d'Orient,    r6formes   et   capitulations,   Paris,    1869. 


Greece 


THE   GRECO-TURKISH   ARBITRATION  189 

hold  real  estate  in  Turkey  and  required  of  the  powers  that 
they  grant  to  Turkey  full  Jurisdiction  in  respect  to  the  real 
estate  rights  of  foreigners.  Again,  its  protracted  effort  to 
prove  some  inconsistency  or  impracticability  in  Article  IV  of 
the  American  treaty  of  1830,  and  particularly  the  insist- 
ence of  its  minister  at  Washington  upon  obtaining  further 
concessions  after  the  matter  had  been  thoroughly  investi- 
gated and  finally  settled,  may  be  reasonably  supposed  to  have 
been  connected  with  the  general  policy  of  trying  to  abolish 
foreign  jurisdiction. 

Between  Turkey  and  Greece  there  was  no  formal  recog-  Arbitra- 

nition,  until  the  commercial  treaty  of  May  23,  1855,^  of  the    tween 

Turkey 
fact  that  the  capitulations  had  remained  in  force  in  favor  of   and 

Greek  consular  jurisdiction  in  Turkey,  and  then  this  recog- 
nition took  merely  the  form  of  a  most-favored-nation  clause.^ 
After  the  war  of  1897  the  Porte  proposed  as  a  condition  of 
peace  that  Greece  should  renounce  the  privileges  of  extra- 
territoriality. The  Porte  also  claimed  that  the  war  had  ter- 
minated the  treaty  of  1855  and  with  it  the  right  to  claim 
those  privileges.  But  the  Greeks  argued  that  extraterri- 
toriality existed  by  virtue  of  agreements  among  the  powers 
in  1830  and  could  therefore  not  be  abrogated  because  of  the 
war.  The  two  governments  were  in  accord  that  crimes  com- 
mitted by  Greeks  upon  Greeks  should  be  tried  in  the  Greek 
consular  courts,  and  that,  if  a  Turk  were  the  injured  party, 
the  trial  should  belong  to  Turkish  jurisdiction,  but  the 
Turks  claimed  the  right  to  try  offenses  of  Greeks  against 
other  aliens  in  Turkey,  a  class  of  offenses  which  Greece 
and  the  other  European  states  maintained  should  be  tried  by 
the  consul  of  the  defendant.  The  Turkish  government 
claimed  that  without  this  jurisdiction  it  could  not  guarantee 
protection  to  foreigners.  The  difference  was  submitted  to 
arbitration  and,  under  certain  restrictions  relating  mostly 
to  enforced  collection  of  debts  and  bankruptcy,  in  regard  to 
which  there  had  been  many  serious  problems,  the  rights  of 
extraterritoriality  of  Greeks  in  Turkey  were  retained.    The 

*  Noradounghlan,  Recueil,  vol.  2,  p.  443,  Art..  24. 


190  SERVIA  AND  ROUMANIA 

criminal  jurisdiction  as  between  Greeks  and  aliens  was  left 
as  it  had  been.^ 
The  In  1878  the  European  powers  in  congress  at  Berlin  deter- 

princi-  mined  the  international  standing  of  the  Danubian  principal- 
^^  ^^  ities.  As  between  Bulgaria  and  Turkey  the  treaty  of  Berlin 
made  Bulgarians  going  into  other  parts  of  the  Turkish  em- 
pire subject  to  Turkish  jurisdiction;  as  between  Turkey  and 
the  independent  principality  of  Servia,  the  subjects  of 
Servia  going  into  Turkey  shall  be  treated,  so  reads  the 
treaty,  "according  to  the  general  principles  of  international 
law'";  as  between  Turkey  and  the  other  independent  prin- 
cipality of  Eoumania,  the  subjects  of  each  in  the  territory  of 
the  other,  so  reads  the  treaty,  "shall  enjoy  the  privileges 
secured  to  subjects  of  other  European  powers."  Whatever 
the  exact  meaning  of  these  terms,  the  Turkish-Servian  con- 
vention of  1896  2  distinctly  places  Servians  in  Turkey  under 
Turkish  jurisdiction,  and  no  stipulations  upon  this  point  are 
found  in  the  printed  conventions  between  Turkey  and  Eou- 
mania as  late  as  the  end  of  1902.^ 

As  between  the  Danubian  principalities  and  the  European 
powers  the  capitulations  were  to  remain  in  force  until  abro- 
gated or  modified  by  convention;  Servia  has  already  estab- 
lished its  judicial  autonomy  and  Eoumania  is  undertaking  to 
do  so.  In  the  protected  states,  Samos,  Crete  and  Cyprus, 
though  neither  the  law  nor  the  administration  of  justice  is 
Turkish,  the  regime  of  the  capitulations  has  not  been  defin- 
itely abolished.  The  Ionian  Islands,  long  an  English  pro- 
tectorate, were  annexed  to  Greece  in  1863. 

To  such  an  extent  in  fact  has  the  sovereignty  of  Turkey 
been  impaired  since  the  treaty  of  Paris  of  1856,  that  the 
terms  of  that  treaty  make  an  ironical  commentary  on  the 
admission  of  the  Ottoman  government  into  the  'concert  of 


1  Streit,  La  sentence  arbitrale  sur  la  question  consulaire  entre  la 
Gr6ce  et  la  Turquie  (including  the  text  of  the  award).  Rev.  de  droit 
Internat.   1902,  p.  24,  178,  281,  527. 

'  Noradounghian,  Traitfes,  vol.  4,  p.  525,  Art.   7. 

»  Schina,  Richterliche  Ingerenz  der  Konsuln  in  Rumanien  (summary 
of  a  speech  in  the  supreme  court  of  appeals  at  Bucharest,  1901), 
Zeitschrift  fur  internat.  privat-  und  offent.  Recht,  1903.  p.  306. 


PRESENT  FORMS  OF  JUSTICE  IN  TURKEY  191 

Europe/  In  spite  of  the  guarantee  of  Turkish  independ- 
ence and  territorial  integrity,  and  of  the  recognition  of  the 
value  of  the  reforms  then  proclaimed  by  the  Sultan,  in  con- 
sideration of  which  the  powers  agreed  not  to  intervene 
either  collectively  or  separately  in  the  internal  administra- 
tion of  the  country,  not  ten  years  elapsed  before  the  Syrian 
massacres  had  horrified  Europe  and  Turkey  was  threatened 
with  the  loss  of  both  the  Danubian  countries  and  Egypt. 
Since  that  time  the  power  of  the  Sultan  has  been  prolonged 
chiefly  by  the  jealousy  of  the  European  powers  one  of  an- 
other, by  the  anxiety  of  the  foreign  creditors,  by  the  shift- 
ing diplomacy  of  the  Porte  itself  and  by  the  increasing 
strength  of  the  Turkish  army. 

The  government  of  Turkey  is  an  absolute  monarchy.    Its   present 
laws  are  merely  decrees  issued  by  the  Sultan  and  his  pre-   tions  of 
decessors  in  interpretation  of  or  as  supplementary  to  the  istration 
precepts   of  the  Koran  and  the   sayings   ascribed  to   Mo-  in  Tur- 
hammed.     The   Mohammedan  religious   precepts   are   very 
specific.    They  prescribe  details  of  conduct  so  minutely  that 
the  faithful  cannot  conceive  of  justice  except  under  the 
rules  of  the  Koran.    The  leading  theologians  are  also  lead- 
ing jurists.    The  local  judges  or  cadis  are  men  of  religious 
training.    They  obey  the  Sultan  because  he  is  Mohammed's 
successor.    It  is  the  assumed  obligation  of  the  courts  to  obey 
instructions  from  the  ministers  of  the  Sultan.    Arrests  and 
imprisonments  by  executive  direction  are  common,  and  oc- 
casionally there  is  a  general  order  for  the   release  frcm 
prison  of  all  persons  against  whom  there  is  no  charge. 

An  effort  has  been  made,  but  with  uncertain  and  irre- 
gular results,  to  adopt  legal  principles  from  western  public 
and  private  law.  In  the  adoption  of  principles  of  commer- 
cial law  there  has  been  some  progress.  But  it  is  obvious  that 
so  long  as  the  Turkish  state  remains  unseeularized,  the  body 
of  Turkish  jurisprudence  must  be  immutable  and  unpro- 
gressive. 

The  measure  of  success  attained  in  the  system  of  mixed 
tribunals  of  commerce  is  largely  due  to  the  solidarity  of  the 
commercial  interests,  foreign  and  Turkish,  and  to  the  con- 


192 


AMERICAN   TREATIES,   KOREA,   CHINA 


Recent 
state- 
ments   of 
the    gen- 
eral 

grounds 
of    re- 
linquish- 
ing 
Juris- 
diction 


centration  of  those  interests  in  the  few  leading  ports,  where 
the  methods  of  business  are  well  established.  The  propor- 
tion of  Mussul-mans  to  non-Mussulmans,  including  Greeks, 
Armenians  and  foreigners  in  Constantinople  and  Smyrna  is 
thought  to  be  (accurate  statistics  do  not  exist)  about 
seventy-seven  Mussulmans  to  eighty-seven  non-Mussulmans.^ 
The  proportion  of  purely  Turkish  business  interests  is  very 
small.  The  prosperity  of  the  Greeks  and  Armenians  con- 
trasts with  the  lack  of  enterprise  and  of  thrift  of  the  Turks. 
The  Turk  is  forced  either  to  be  tolerant  or  to  content  him- 
self with  less  of  borrowed  prosperity. 

The  only  basis  upon  which  Justice  to  the  foreign  residents 
in  Turkey  would  permit  the  relinquishment  of  extraterri- 
torial privileges  is  that  upon  which  the  Jurisdiction  was 
withdrawn  from  Japan.  A  documentary  statement  of  this 
ground  of  withdrawal  is  not  to  be  found  in  the  new  treaties 
with  Japan,  but  an  excellent  statement  of  it  occurs  in  Article 
IV  of  the  treaty  of  May  22,  1882,  between  the  United  States 
and  Korea,  as  follows: 

It  is,  however,  mutually  agreed  between  the  high  contracting 
powers,  that  whenever  the  King  of  Chosen  shall  have  so  far 
modified  and  reformed  the  statutes  and  the  judicial  procedure 
of  his  kingdom  that,  in  the  judgment  of  the  United  States,  they 
conform  to  the  laws  and  course  of  justice  in  the  United  StatBS, 
the  right  of  extraterritorial  jurisdiction  over  United  States  citi- 
zens in  Chosen  shall  be  abandoned,  and  thereafter  United  States 
citizens,  when  within  the  limits  of  the  Kingdom  of  Chosen,  shall 
be  subject  to  the  jurisdiction  of  the  native  authorities. 

The  treaty  signed  at  Shanghai,  October  8,  1903,  between 
the  United  States  and  China,  reads,  in  Article  XV,  as 
follows : 

The  Government  of  China  having  expressed  a  strong  desire  to 
reform  its  judicial  system  and  to  bring  it  into  accord  with  that 
of  Western  nations,  the  United  States  agrees  to  give  every 
assistance  to  such  reform  and  will  also  be  prepared  to  relinquish 
extra-territorial  rights  when  satisfied  that  the  state  of  the 
Chinese  laws,  the  arrangements  for  their  administration,  and 
other  considerations  warrant  it  in  so  doing. 


>  Statesman's  Year  Book,   1905,   p.   1220-1. 


THE  CHINESE  SYSTEM  OF  JUSTICE  193 

The  recodification  of  the  laws  of  Siara,  with  incorpora- 
tion of  principles  of  western  law,  has  been  proceeding  for  a 
number  of  years,  and  it  is  believed  that  some  definite  plan 
of  relinquishing  consular  jurisdiction  is  likely  to  be  proposed 
to  the  foreign  powers  in  the  near  future.^ 

Similar  provisions  were  inserted  in  the  British  and  Japan-  Attitude 

^  -,    r\    ,    T  ot    China 

ese  treaties  with  China  of  September  5,  1903,  and  October  regard- 
8,  1903.  The  Chinese  have  long  desired  the  abrogation  of  adoption 
extraterritoriality,  yet  their  government  has  undertaken  no  western 
permanent  plan  to  accomplish  it.  In  a  way  the  problem  of 
building  up  a  national  system  of  law  in  China  may  be  com- 
pared to  the  problem  which  confronted  Germany  in  the  re- 
codification of  laws  necessitated  by  the  unification  of  the 
empire,  for  in  China,  as  in  Germany,  the  laws  of  the  various 
states  or  provinces  composing  the  empire  will  have  to  be 
most  carefully  considered  in  making  the  general  code  in- 
tended, at  least  in  part,  to  supplant  the  local  law;  and  the 
relation  of  the  German  states  to  their  federal  union  was  far 
better  defined  than  is  the  relation  of  the  provincial  govern- 
ments in  China  to  the  imperial  government.  There  is  much 
to  be  hoped  for  in  the  example  and  influence  of  Japan,  and 
it  is  generally  believed  that  the  younger  men  of  China, 
awakening  to  the  possibilities  of  their  country,  are  pre- 
paring to  bring  aboiit  such  advancement  among  the  Chinese 
as  took  place  in  Japan  toward  the  end  of  the  nineteenth 
century. 

The  Chinese  governmental  system  and  administration  of 
justice  is  described  with  some  minuteness  in  the  dispatches 
of  Minister  Denby.  The  penal  code  of  China  is  written;  the 
civil  and  commercial  law,  though  consisting  of  very  few 
principles,  has  something  of  the  nature  of  the  English  com- 
mon law.  The  lower  courts  are  held  by  the  district  magis- 
trate, who,  in  addition  to  his  judicial  duties  in  both  civil  and 
criminal  cases,  is  responsible  for  the  good  order  of  his  dis- 
trict, has  soldiers  under  him,  collects  taxes  and  conducts  the 

»  Dange  (formerly  legal  adviser  to  the  government  of  Slam),  De  la 
condition  juridique  des  strangers  et  de  I'organisation  judiciaire  au 
Siam,  Jour,  du  droit  Internat.  priv4,  1900,  p.  461,  704. 


194 


ABROGATION     SIMULTANEOUS. 


Re- 
linquish- 
ment   Is 
generally 
simul- 
taneous 
on  the 
part  of 
the    lead- 
ing 
powers 


literary  or  civil  service  examinations.  There  are  no  pro- 
fessional lawyers,  but  there  is  an  oflficial,  with  duties  in 
general  like  those  of  a  constable,  who  prepares  the  papers  in 
actions  of  whatever  nature.  The  court  does  not  appear  to  be 
bound  by  any  technical  rules,  and  the  decisions  would  be 
regarded  by  an  occidental  as  strangely  summary  and  at  times 
arbitrary.  A  system  of  appeals  exists,  by  which  cases  may 
be  brought  before  the  provincial  governors  and  to  the  im- 
perial officers  at  Peking.  The  fundamental  principle  in  the 
administration  of  justice,  as  in  other  departments  of  the 
government,  is  that  of  submission  to  parental  authority. 
The  body  of  the  people  take  great  pride  in  their  existing  law, 
and  their  influence  upon  its  administration  is  not  unlike  the 
force  of  public  opinion  under  a  democratic  form  of  govern- 
ment. ^ 

The  treaties  which  contain  provisions  as  to  relinquish- 
ment of  jurisdiction,  it  is  to  be  noted,  do  not  mention  the 
possibility  of  delaying  such  relinquishment  until  other 
powers  are  prepared  to  do  the  same.  Although  relinquish- 
ment in  Japan  was  simultaneous  on  the  part  of  the  powers, 
except  France,  it  was  not  approximately  of  the  same  time, 
and  there  was  no  cooperation  to  make  it  so,  in  Madagascar 
and  Servia.  By  treaty  of  October  30,  1888,  Mexico  accepted 
for  Mexican  citizens  in  Japan  the  full  jurisdiction  of  the 
Japanese  government;  but  although  this  treaty  went  into 
operation  more  than  ten  years  before  the  treaties  with  other 
western  states,  it  had  less  significance,  because  it  was  the 
first  treaty  between  the  two  countries  and  Mexican  citizens 
had  at  no  time  enjoyed  extraterritorial  privileges  in  Japan.' 
But  by  mutual  agreement  between  Japan  and  Hawaii  the 
extraterritoriality  of  Hawaiians  in  Japan  under  the  treaty 
of  August  19,  1871,  was  relinquished  and  announcement 
thereof  made  by  Japan  on  April  12,  1894.^  China  relin- 
quished jurisdiction  in  Japan  by  treaty  of  July  21,  1896. 
Servia  and  Turkey  mutually  renounced  it  each  in  the  terri- 


*  For.  Rel.  1887,  p.  212-8;  1888,  pt.  1,  p.  846. 

>  Martens,  Nouveau  receuil,  2d  series,  (Stoerk),  vol.  18,  p.  755. 

*  Parliamentary  Papers,  1894,  vol.  xcvi,  Japan  No.  1,  p.  142. 


PROGRESS  OF  THE  ORIENTAL  NATIONS  195 

tory  of  the  other  by  convention  of  March  9,  1896.  From 
these  instances  of  relinquishment  it  is  seen  that  the  prac- 
tice in  regard  to  abrogation  of  the  more  important  treaties 
of  extraterritoriality  has  been  to  abrogate  them  at  ap- 
proximately the  same  time.  In  a  sense  the  consular  courts 
are  like  national  institutions  in  the  countries  where  they 
exist,  that  is,  they  have  features  of  jurisdiction  and  usage 
peculiar  to  the  localities  where  they  are  held,  and  new 
difficulties  would  arise  if  one  western  power,  acting  inde- 
pendently of  other  powers,  should  relinquish  its  share  in 
these  institutions.  It  is  conceivable  that  such  independent 
action  might  be  taken  by  certain  powers  with  regard  to  coun- 
tries where  very  few  of  their  citizens  or  subjects  might  be 
affected  by  the  change,  but  independent  action  by  one  of  the 
leading  powers  with  regard  to  China  or  Turkey  is  altogether 
improbable. 

In  explaining  the  necessity  of  consular  extraterritorial  im- 
jurisdiction  in  the  middle  of  the  nineteenth  century,  when  adminis- 
so  large  a  number  of  treaties  providing  for  it  were  made,  the   of  con- 
treaties    frequently    employed    the    terms    'non-Christian,^   courts 
*semi-civilized,^    and    ^barbarous/    in    relation    to    oriental   tributes 

'  to  na- 

states:  and  the  language  of  official  documents  of  oriental   tionai 

"      °  progress 

governments  contained  similar  expressions  in  regard  to  the  i^J^^^. 
western  nations.  The  present  infrequency  or  disappearance 
of  those  terms  indicates  how  great  has  been  the  change 
within  oriental  countries  and  how  much  less  vague  our 
knowledge  of  the  possible  developments  among  oriental 
peoples  has  become.  Fifty  years  ago  we  knew  little  of  Tur- 
key, except  upper  Egypt,  Constantinople,  Smyrna  and  a 
few  other  coast  cities ;  and  of  the  Far  East  w.e  knew  nothing 
except  of  methods  of  trade  at  a  few  widely  separated  ports. 
Today,  with  the  telegraph  and  railroad  reaching  far  into  the 
interior  of  these  countries,  we  are  aware  that  a  new  era  of 
most  remarkable  development  of  the  oriental  nations  has 
opened.  The  civilization  of  the  East,  though  extremely 
different  from  that  of  the  West,  may  no  longer  be  regarded 
as  incompatible  with  the  full  international  responsibility  of 


Orient 


196         BETTERMENT  OF  THE  AMERICAN  COURTS 

an   oriental    state    to   protect    the    property    and    lives    of 
foreigners  residing  or  trading  in  its  territory. 
Legisia-  If  the  inadequency  of  native  jurisdiction  in  the  Orient 

sirabie.  originally  made  it  necessary  to  establish  consular  courts  and 
secure  extraterritorial  privileges,  it  especially  behooves  the 
western  states  at  this  time  of  more  rapid  development  among 
eastern  nations  to  provide  that  their  jurisdiction  in  the  con- 
sular courts  be  well  and  justly  exercised.  The  most  highly 
perfected  systems  of  consular  jurisdiction,  those  of  Great 
Britain  and  France,  have  been  frequently  the  subject  of  re- 
adjustment and  improvement  either  through  legislative 
action  or  under  regulations  provided  by  the  chief  coun- 
sellors of  state.  Notwithstanding  the  extensive  commerce 
and  the  large  influence  which  the  United  States  has  come  to 
enjoy  in  the  Orient,  the  system  of  American  consular  courts 
has  remained  practically  without  the  attention  of  Congress 
since  1848.  In  the  interest  of  justice  to  American  citizens 
in  those  countries  where  the  jurisdiction  is  not  likely  to  be 
relinquished  for  years  to  come,  and  with  the  object  of  main- 
taining a  high  standard  in  our  international  relations,  it  is 
apparently  necessary  for  the  government  of  the  United 
States  to  provide  an  improved  system  of  consular  extra- 
territorial jurisdiction. 


APPENDIX 


I— EXTEATEREITOEIAL  STIPULATIONS 
OF  UNITED  STATES  TREATIES ' 

I  —  BORNEO 
Treaty  of  June  23,  1850 

Article  IX.  His  Highness  the  Sultan  of  Borneo  agrees  that 
in  all  cases  where  a  citizen  of  the  United  States  shall  be  accused 
of  any  crime  committed  in  any  port  of  His  Highness'  dominions, 
the  person  so  accused  shall  be  exclusively  tried  and  adjudged 
by  the  American  Consul,  or  other  officer  duly  apopinted  for  that 
purpose;  and  in  all  cases  where  disputes  or  differences  may 
arise  between  American  citizens,  or  between  American  citizens 
and  the  subjects  of  His  Highness,  or  between  American  citizens 
and  the  citizens  or  subjects  of  any  other  foreign  power  in  the 
dominions  of  the  Sultan  of  Borneo,  the  American  Consul,  or 
other  duly  appointed  officer,  shall  have  power  to  hear  and 
decide  the  same,  without  any  interference,  molestation  or 
hindrance  on  the  part  of  any  authority  of  Borneo,  either  before, 
during,  or  after  the  litigation. 

II  —  CHINA 
Treaty  of  July  3,  1844 

Article  XXI.  Subjects  of  China  who  may  be  guilty  of  any 
criminal  act  towards  citizens  of  the  United  States  shall  be 
arrested  and  punished  by  the  Chinese  authorities  according  to 
the  laws  of  China;  and  citizens  of  the  United  States  who  may 
commit  any  crime  in  China  shall  be  subject  to  be  tried  and 
punished  only  by  the  Consul,  or  other  public  functionary  of 
the  United  States,  thereto  authorized,  according  to  the  laws 
of  the   United   States.     And  in   order  to  the   prevention   of  all 


>  The  treaties  from  which  these    extracts    are    taken    were    presum- 
ably   in    force    January   1,    1906. 


198  APPENDIX  I 

controversy  and  disaffection,  justice  shall  be  equitably  and 
impartially  administered  on  both  sides. 

Article  XXIV.  .  .  .  And  if  controversies  arise  between 
citizens  of  the  United  States  and  suljjects  of  China,  which  cannot 
be  amicably  settled  otherwise,  the  same  shall  be  examined  and 
decided  conformably  to  justice  and  equity  by  the  public  officers 
of  the  two  nations  acting  in  conjunction. 

Article  XXV.  All  questions  in  regard  to  rights,  whether 
of  property  or  person,  arising  between  citizens  of  the  United 
States  in  China,  shall  be  subject  to  the  jurisdiction  of,  and 
regulated  by  the  authorities  of  their  own  Government.  Anfl 
all  controversies  occurring  in  China  between  citizens  of  the 
United  States  and  the  subjects  of  any  other  Government  shall 
be  regulated  by  the  treaties  existing  between  the  United  States 
and  such  Governments,  respectively,  without  interference  on 
the  part  of  China. 

Article  XXIX.  .  .  .  The  merchants,  seamen  and  other 
citizens  of  the  United  States  shall  be  under  the  superintendence 
of  the  appropriate  officers  of  their  Government.  If  individuals 
of  either  nation  commit  acts  of  violence  or  disorder,  use  arms 
to  the  injury  of  others,  or  create  disturbances  endangering  life, 
the  officers  of  the  two  Governments  will  exert  themselves  to 
enforce  order,  and  to  maintain  the  public  peace,  by  doing 
impartial  justice  in  the  premises. 

Treaty  of  June  18,  1858 

Article  XI.  All  citizens  of  the  United  States  of  America 
in  China,  peaceably  attending  to  their  affairs,  being  placed  on  a 
common  footing  of  amity  and  good  will  with  the  subjects  of 
China,  shall  receive  and  enjoy  for  themselves  and  everything 
pertaining  to  them,  the  protection  of  the  local  authorities  of 
Government,  who  shall  defend  them  from  all  insult  or  injury  of 
any  sort.  If  their  dwellings  or  property  be  threatened  or 
attacked  by  mobs,  incendiaries,  or  other  violent  or  lawless 
persons,  the  local  officers,  on  requisition  of  the  Consul,  shall 
Immediately  despatch  a  military  force  to  disperse  the  rioters, 
apprehend  the  guilty  individuals,  and  punish  them  with  the 
utmost  rigor  of  the  law.  Subjects  of  China  guilty  of  any  criminal 
act  toward  citizens  of  the  United  States  shall  be  punished  by 
the  Chinese  authorities  according  to  laws  of  China;  and  citizens 
of  the  United  States,  either  on  shore  or  in  any  merchant  vessel, 
who  may  insult,  trouble  or  wound  the  persons  or  injure  the 
property  of  Chinese,  or  commit  any  other  improper  act  in  China, 
shall  be  punished  only  by  the  Consul  or  other  public  functionary 
thereto  authorized,  according  to  the  laws  of  the  United  States. 


UNITED  STATES  TREATIES  199 

Arrests  in  order  to  trial  may  be  made  by  either  the  Chinese 
or  the  United  States  authorities. 

Article  XXVII.  .  .  .  All  questions  in  regard  to  rights, 
whether  of  property  or  of  person,  arising  between  citizens  of 
the  United  States  in  China  shall  be  subject  to  the  jurisdiction 
and  regulated  by  the  authorities  of  their  own  Government;  and 
all  controversies  occurring  in  China  between  citizens  of  the 
United  States  and  the  subjects  of  any  other  Government  shall 
be  regulated  by  the  treaties  existing  between  the  United  States 
and  such  Governments,  respectively,  without  interference  on 
the  part  of  China. 

Treaty  of  November  17,  1880 

Article  IV.  When  controversies  arise  in  the  Chinese  Empire 
between  citizens  of  the  United  States  and  subjects  of  His 
Imperial  Majesty,  which  need  to  be  examined  and  decided  by 
the  public  oflacers  of  the  two  nations,  it  is  agreed  between  the 
Governments  of  the  United  States  and  China  that  such  cases 
shall  be  tried  by  the  proper  oflBcial  of  the  nationality  of  the 
defendant.  The  properly  authorized  official  of  the  plaintiff's 
nationality  shall  be  freely  permitted  to  attend  the  trial  and 
shall  be  treated  with  the  courtesy  due  to  his  position.  He  shall 
be  gi-anted  all  proper  facilities  for  watching  the  proceedings  in 
the  interests  of  justice.  If  he  so  desires,  he  shall  have  the 
right  to  present,  to  examine  and  to  cross-examine  witnesses. 
If  he  is  dissatisfied  with  the  proceedings,  he  shall  be  permitted 
to  protest  against  them  in  detail.  The  law  administered  will 
be  the  law  of  the  nationality  of  the  officer  trying  the  case. 

Ill  —  KOREA 

Treaty  of  May  22,  1882 

Article  IV.  .  .  .  Subjects  of  Chosen,  guilty  of  any 
criminal  act  towards  citizens  of  the  United  States,  shall  be 
punished  by  the  authorities  of  Chosen,  according  to  the  laws 
of  Chosen;  and  citizens  of  the  United  States,  either  on  shore  or 
in  any  merchant  vessel,  who  may  insult,  trouble  or  wound  the 
persons,  or  injure  the  property  of  the  people  of  Chosen,  shall  be 
arrested  and  punished  only  by  the  consul  or  other  public  func- 
tionary of  the  United  States,  thereto  authorized  according  to  the 
laws  of  the  United  States. 

When  controversies  arise  in  the  Kingdom  of  Chosen  between 
citizens  of  the  United  States  and  subjects  of  His  Majesty, 
which  need  to  be  examined  and  decided  by  the  public  officers 
of  the  two  nations,  it  is  agreed  between  the  two  Governments 


200  APPENDIX  I 

of  the  United  States  and  Chosen,  that  such  cases  shall  be  tried 
by  the  proper  official  of  the  nationality  of  the  defendant, 
according  to  the  laws  of  that  nation.  The  properly  authorized 
ofiacial  of  the  plaintiff's  nationality  shall  be  freely  permitted 
to  attend  the  trial,  and  shall  be  treated  with  the  courtesy  due 
to  his  position.  He  shall  be  granted  all  proper  facilities  for 
watching  the  proceedings  in  the  interests  of  justice.  If  he 
so  desires,  he  shall  have  the  right  to  present,  to  examine  and 
to  cross-examine  witnesses.  If  he  is  dissatisfied  with  the  pro- 
ceedings, he  shall  be  permitted  to  protest  against  them  in  detail. 
It  is,  however,  mutually  agreed  and  understood  between 
the  high  contracting  powers,  that  whenever  the  King  of  Chosen 
shall  have  so  far  modified  and  reformed  the  statutes  and  judicial 
procedure  of  his  kingdom  that,  in  the  judgment  of  the  United 
States,  they  conform  to  the  laws  and  course  of  justice  in  the 
United  States,  the  right  of  extraterritorial  jurisdiction  over  Uni- 
ted States  citizens  in  Chosen  shall  be  abandoned,  and  thereafter 
United  States  citizens,  when  within  the  limits  of  the  Kingdom 
of  Chosen,  shall  be  subject  to  the  jurisdiction  of  the  native 
authorities. 

IV  —  MASKAT 

Treaty  of  September  21,  1833 

Article  IX.  The  President  of  the  United  States  may  ap- 
point consuls  to  reside  in  the  ports  of  the  Sultan  where  the 
principal  commerce  shall  be  carried  on,  which  consuls  shall  be 
the  exclusive  judges  of  all  disputes  or  suits  wherein  American 
citizens  shall  be  engaged  with  each  other.  They  shall  have 
power  to  receive  the  property  of  any  American  citizen  dying 
within  the  kingdom,  and  to  send  the  same  to  his  heirs,  first  pay- 
ing all  his  debts  due  to  the  subjects  of  the  Sultan.  The  said 
consuls  shall  not  be  arrested,  nor  shall  their  property  be  seized, 
nor  shall  any  of  their  household  be  arrested,  but  their  persons 
and  property  and  their  houses  shall  be  inviolate.  Should  any 
consul,  however,  commit  any  offense  against  the  laws  of  the 
kingdom,  complaint  shall  be  made  to  the  President,  who  shall 
immediately  displace  him. 


V  — MOROCCO 

Treaty  of  January  25,  1787 

Article  XX.  If  any  of  the  citizens  of  the  United  States,  or 
any  persons  under  their  protection,  shall  have  any  disputes 
with  each  other,  the  Consul  shall   decide  between  the  parties, 


UNITED   STATES   TREATIES  201 

and  whenever  the  Consul  shall  require  any  aid  or  assistance 
from  our  Government,  to  enforce  his  decisions,  it  shall  be 
immediately  granted  to  him. 

Article  XXI.  If  a  citizen  of  the  United  States  should  kill 
or  wound  a  Moor,  or,  on  the  contrary,  if  a  Moor  shall  kill  or 
wound  a  citizen  of  the  United  States,  the  law  of  the  country 
shall  take  place,  and  equal  justice  shall  be  rendered,  the  Consul 
assisting  at  the  trial;  and  if  any  delinquent  shall  make  his 
escape,  the  Consul  shall  not  be  answerable  for  him  in  any 
manner  whatever. 

Treaty  of  September  16,  1836 

(Articles  XX,  XXI  are  the  same  as  Articles  XX,  XXI  of  the 
treaty  of  January  25,  1787,  supra.) 

VI  —  PERSIA 
Treaty  of  December  13,  1856 

Article  V.  .  .  .  All  suits  and  disputes  arising  in  Persia 
between  Persian  subjects  and  citizens  of  the  United  States  shall 
be  carried  before  the  Persian  tribunal  to  which  such  matters  are 
usually  referred  at  the  place  where  a  Consul  or  Agent  of  the 
United  States  may  reside,  and  shall  be  discussed  and  decided 
according  to  equity,  in  the  presence  of  an  employe  of  the  Consul 
or  Agent  of  the  United  States. 

All  suits  and  disputes  which  may  arise  in  the  Empire  ot 
Persia  between  citizens  of  the  United  States  shall  be  referred 
entirely  for  trial  and  for  adjudication  to  the  Consul  or  Agent 
of  the  United  States  residing  in  the  province  wherein  such  suits 
and  disputes  may  have  arisen,  or  in  the  province  nearest  to 
it,  who  shall  decide  them  according  to  the  laws  of  the  United 
States. 

All  suits  and  disputes  occurring  in  Persia  between  the 
citizens  of  the  United  States  and  the  subjects  of  other  foreign 
Powers,  shall  be  tried  and  adjudicated  by  the  intermediation  of 
their  respective  Consuls  or  Agents. 

In  the  United  States,  Persian  subjects,  in  all  disputes 
arising  between  themselves,  or  between  them  and  citizens  of  the 
United  States  or  foreigners,  shall  be  judged  according  to  the 
rules  adopted  in  the  United  States  respecting  the  subjects  ot 
the  most  favored  nation. 

Persian  subjects  residing  in  the  United  States,  and  citizens 
of  the  United  States,  residing  in  Persia,  shall,  when  charged 
with  criminal  offences,  be  tried  and  judged  in  Persia  and  the 
United   States   in   the    same   manner   as   are   the   subjects   and 


202  APPENDIX  I 

citizens   of  the  most  favored  nation  residing  in   either   of  the 
above-mentioned  countries. 

VII  —  SIAM 

Treaty  of  March  20,  1833 

Article  IX.  Merchants  of  the  United  States  trading  in  the 
Kingdom  of  Siam  shall  respect  and  follow  the  laws  and  customs 
oi  the  country  in  all  points. 

Treaty  of  May  29,  1856 

Article  II.  The  interests  of  all  American  citizens  coming  to 
Siam  shall  be  placed  under  the  regulations  and  control  of  a  Con- 
sul, who  will  be  appointed  t6  reside  at  Bangkok.  He  will  himself 
conform  to  and  will  enforce  the  observance  by  American  citizens 
of  all  the  provisions  of  this  treaty,  and  such  of  the  former 
treaty,  negotiated  by  Mr.  Edmund  Roberts,  in  1833,  as  shall  still 
remain  in  operation.  He  shall  also  give  effect  to  all  rules  and 
regulations  as  are  now  or  may  hereafter  be  enacted  for  the 
government  of  American  citizens  in  Siam,  the  conduct  of  their 
trade,  and  for  the  prevention  of  violation  of  the  laws  of 
Siam.  Any  dispute  arising  between  American  citizens  and 
Siamese  subjects  shall  be  heard  and  determined  by  the  Consul, 
in  conjunction  with  the  proper  Siamese  ofllcers;  and  criminal 
offences  will  be  punished  in  the  case  of  American  offenders, 
by  the  Consul,  according  to  American  laws,  and  in  the  case 
of  Siamese  offenders  by  their  own  laws,  through  the  Siamese 
authorities.  But  the  Consul  shall  not  interfere  in  any  matters 
referring  solely  to  Siamese;  neither  will  the  Siamese  authorities 
interfere  in  questions  which  only  concern  the  citizens  of  the 
United  States. 

Vni  —  TRIPOLI 

Treaty  of  November  4,  1796 

Article  IX.  The  commerce  between  the  United  States  and 
Tripoli;  the  protection  to  be  given  to  merchants,  masters  ot 
vessels  and  seamen;  the  reciprocal  right  of  establishing  Consuls 
in  each  country,  and  the  privileges,  immunities,  and  jurisdictions 
to  be  enjoyed  by  such  Consuls  are  declared  to  be  on  the  same 
footing  with  those  of  the  most  favoured  nations  respectively. 

Treaty  of  June  4,  1805 

Article  XVIII.  If  any  of  the  citizens  of  the  United  States, 
or  any  persons  under  their  protection,  shall  have  any  dispute 


UNITED  STATES  TREATIES  203 

with  each  other,  the  Consul  shall  decide  between  the  parties, 
and  whenever  the  Consul  shall  require  any  aid  or  assistance 
from  the  Government  of  Tripoli  to  enforce  his  decisions,  it 
shall  immediately  be  granted  to  him,  and  if  any  dispute 
shall  arise  between  any  citizen  of  the  United  States  and  the 
citizens  or  subjects  of  any  other  nation  having  a  Consul  or 
Agent  in  Tripoli,  such  dispute  shall  be  settled  by  the  Consuls 
or  Agents  of  the  respective  nations. 

Article  XIX.  If  a  citizen  of  the  United  States  should  kill 
or  wound  a  Tripoline,  or,  on  the  contrary,  if  a  Tripoline  shall 
kill  or  wound  a  citizen  of  the  United  States,  the  law  of  the 
country  shall  take  place,  and  equal  justice  shall  be  rendered, 
the  Consul  assisting  at  the  trial ;  and  if  any  delinquent  shall  make 
his  escape,  the  Consul  shall  not  be  answerable  for  him  in  any 
manner  whatever. 

IX  —  TURKEY 

Treaty  of  May  7,  1830 

Article  IV.  If  litigations  and  disputes  should  arise  between 
subjects  of  the  Sublime  Porte  and  citizens  of  the  United  States, 
the  parties  shall  not  be  heard,  nor  shall  judgments  be  pronounced 
unless  the  American  Dragoman  be  present.  Causes  in  which 
the  sum  may  exceed  five  hundred  piastres,  shall  be  submitted 
to  the  Sublime  Porte,  to  be  decided  according  to  the  laws  of 
equity  and  justice.  Citizens  of  the  United  States  of  America, 
quietly  pursuing  their  commerce,  and  not  being  charged  or 
convicted  of  any  crime  or  offence,  shall  not  be  molested;  and 
even  when  they  may  have  committed  some  offence  they  shall 
not  be  arrested  and  put  in  prison,  by  the  local  authorities,  but 
they  shall  be  tried  by  their  Minister  or  Consul,  and  punished 
according  to  their  offence,  following,  in  this  respect,  the  usage 
observed  towards  other  Franks. 

X  —  ZANZIBAR 

Treaty  of  July  3,  1886 

Article  II.  The  Consuls  of  the  United  States  appointed 
under  the  stipulation  of  the  IXth  article  of  the  treaty  above 
mentioned,  shall,  in  addition  to  the  rights,  powers  and  im- 
munities secured  by  said  article,  enjoy  all  the  rights,  privileges, 
immunities  and  jurisdictional  powers  which  are  now  or  may 
hereafter  be  enjoyed  by  the  Consuls  and  Consular  Agents  of 
the  most  favored  nations,  and,  conversely,  the  Consuls  and 
Consular  Agents  which  His  Highness  the  Sultan  may  appoint 
to  reside  in  the  United  States  shall  have  the  treatment  of 
Agents  of  like  grade  of  the  most  favored  nation. 


n— UNITED  STATES  REVISED  STATUTES, 
SECTIONS  4083-4130 


Sec.  4083.  To  carry  into  full  effect  the  provisions  of  the 
treaties  of  the  United  States  with  China,  Japan,  Siam,  Egypt, 
and  Madagascar,  respectively,  the  minister  and  the  consuls  of 
the  United  States,  duly  appointed  to  reside  in  each  of  those 
countries,  shall,  in  addition  to  other  powers  and  duties  imposed 
upon  them,  respectively,  by  the  provisions  of  such  treaties, 
respectively,  be  invested  with  the  judicial  authority  herein 
described,  which  shall  appertain  to  the  office  of  minister  and 
consul,  and  be  a  part  of  the  duties  belonging  thereto,  wherein, 
and  so  far  as,  the  same  is  allowed  by  treaty. 

Sec.  4084.  The  officers  mentioned  in  the  preceding  sec- 
tion are  fully  empowered  to  arraign  and  try,  in  the  manner 
herein  provided,  all  citizens  of  the  United  States  charged  with 
offenses  against  law,  committed  in  such  countries,  respectively, 
and  to  sentence  such  offenders  in  the  manner  herein  authorized; 
and  each  of  them  is  authorized  to  issue  all  such  processes  as 
are  suitable  and  necessary  to  carry  this  authority  into  execu- 
tion. 

Sec.  4085.  Such  officers  are  also  invested  with  all  the 
judicial  authority  necessary  to  execute  the  provisions  of  such 
treaties,  respectively,  in  regard  to  civil  rights,  whether  of  prop- 
erty or  person;  and  they  shall  entertain  jurisdiction  in  matters 
of  contract,  at  the  port  where,  or  nearest  to  which,  the  contract 
was  made,  or  at  the  port  at  which,  or  nearest  to  which,  it  was 
to  be  executed,  and  in  all  other  matters,  at  the  port  where,  or 
nearest  to  which,  the  cause  of  controversy  arose,  or  at  the  port 
where,  or  nearest  to  which,  the  damage  complained  of  was 
sustained,  provided  such  port  be  one  of  the  ports  at  which  the 
United  States  are  represented  by  consuls.  Such  jurisdiction  shall 
embrace  all  controversies  between  citizens  of  the  United  States, 
or  others,  provided  for  by  such  treaties,  respectively. 

Sec.  4086.  Jurisdiction  in  both  criminal  and  civil  matters 
shall,  in  all  cases,  be  exercised  and  enforced  in  conformity  with 
the  laws  of  the  United  States,  which  are  hereby,  so  far  as  is  nec- 
essary to  execute  such  treaties,  respectively,  and  so  far  as  they 
are  suitable  to  carry  the  same  into  effect,  extended  over  all 
citizens  of  the  United  States  in  those  countries,  and  over  all 
others  to  the  extent  that  the  terms  of  the  treaties,  respectively, 
justify  or  require.  But  in  all  cases  where  such  laws  are  not 
adapted  to  the  object,  or  are  deficient  in  the  provisions  neces- 


U.  S.  REV.  STAT.,  SEC.  4083-4130  205 

sary  to  furnish  suitable  remedies,  the  common  law  and  the  law 
of  equity  and  admiralty  shall  be  extended  in  like  manner  over 
such  citizens  and  others  in  those  countries;  and  if  neither  the 
common  law,  nor  the  law  of  equity  or  admiralty,  nor  the  stat- 
utes of  the  United  States,  furnish  appropriate  and  sufficient 
remedies,  the  ministers  in  those  countries,  respectively,  shall,  by 
decrees  and  regulations  which  shall  have  the  force  of  law,  sup- 
ply such  defects  and  deficiencies. 

Sec.  4087.  Each  of  the  consuls  mentioned  in  section  forty 
hundred  and  eighty-three,  at  the  port  for  which  he  is  appointed, 
is  authorized  upon  facts  within  his  own  knowledge,  or  which  he 
has  good  reason  to  believe  true,  or  upon  complaint  made  or  in- 
formation filed  in  writing  and  authenticated  in  such  way  as  shall 
be  prescribed  by  the  minister,  to  issue  his  warrant  for  the  arrest 
of  any  citizen  of  the  United  States  charged  with  committing  in 
the  country  an  offense  against  law;  and  to  arraign  and  try  any 
such  offender;  and  to  sentence  him  to  punishment  in  the  man- 
ner herein  prescribed. 

Sec.  4088.  The  consuls  and  commercial  agents  of  the  Uni- 
ted States  at  islands  or  in  countries  not  inhabited  by  any  civ- 
ilized people,  or  recognized  by  any  treaty  with  the  United  States, 
are  authorized  to  try,  hear,  and  determine  all  cases  in  regard 
to  civil  rights,  whether  of  person  or  property,  where  the  real 
debt  or  damages  do  not  exceed  the  sum  of  one  thousand  dollars, 
exclusive  of  costs,  and  upon  full  hearing  of  the  allegations  and 
evidence  of  both  parties,  to  give  judgment  according  to  the  laws 
of  the  United  States,  and  according  to  the  equity  and  right  of 
the  matter,  in  the  same  manner  as  justices  of  the  peace  are 
now  authorized  and  empowered  where  the  United  States  have 
exclusive  jurisdiction.  They  are  also  invested  with  the  powers 
conferred  by  the  provisions  of  sections  forty  hundred  and  eighty- 
six  and  forty  hundred  and  eighty-seven  for  trial  of  offenses  or 
misdemeanors. 

Sec.  4089.  Any  consul  when  sitting  alone  may  also  decide 
all  cases  in  which  the  fine  imposed  does  not  exceed  five  hundred 
dollars,  or  the  term  of  imprisonment  does  not  exceed  ninety 
days;  but  in  all  such  cases,  if  the  fine  exceeds  one  hundred  del 
lars,  or  the  term  of  imprisonment  for  misdemeanors  exceeds 
sixty  days,  the  defendants  or  any  of  them,  if  there  be  more 
than  one,  may  take  the  case,  by  appeal,  before  the  minister,  if 
allowed  jurisdiction,  either  upon  errors  of  law  or  matters  of 
fact,  under  such  rules  as  may  be  prescribed  by  the  minister  for 
the  prosecution  of  appeals  in  such  cases. 

Sec.  4090.  Capital  cases  for  murder  or  insurrection  against 
the  government  of  either  of  the  countries  hereinbefore  men- 
tioned, by  citizens  of  the  United  States,  or  for  offenses  against 


206  APPENDIX   II 

the  public  peace  amounting  to  felony  under  the  laws  of  the 
United  States,  may  be  tried  before  the  minister  of  the  United 
States  in  the  country  where  the  offense  is  committed  if  allowed 
jurisdiction;  and  every  such  minister  may  issue  all  manner 
of  writs,  to  prevent  the  citizens  of  the  United  States  ficm  en- 
listing in  the  military  or  naval  service  of  either  of  the  said 
countries,  to  make  war  upon  any  foreign  power  with  whom  the 
United  States  are  at  peace,  or  in  the  service  of  one  portion  of 
the  people  against  any  other  portion  of  the  same  people;  and  he 
may  carry  out  this  power  by  a  resort  to  such  force  belonging  to 
the  United  States,  as  may  at  the  time  be  within  his  reach. 

Sec.  4091.  Each  of  the  ministers  mentioned  in  section  forty 
hundred  and  eighty-three  shall,  in  the  country  to  which  he  is 
appointed,  be  fully  authorized  to  hear  and  decide  all  cases,  crim- 
inal and  civil,  which  may  come  before  him,  by  appeal,  under  the 
provisions  of  this  Title,  and  to  issue  all  processes  necessary  to 
execute  the  power  conferred  upon  him;  and  he  is  fully  em- 
powered to  decide  finally  any  case  upon  the  evidence  which 
comes  up  with  it,  or  to  hear  the  parties  further,  if  he  thinks 
justice  will  be  promoted  thereby;  and  he  may  also  prescribe  the 
rules  upon  which  new  trials  may  be  granted,  either  by  the  con- 
suls or  by  himself,  if  asked  for  upon  sufficient  grounds. 

Sec.  4092.  On  any  final  judgment  in  a  consular  court  of 
China  or  Japan,  where  the  matter  in  dispute  exceeds  five  hun- 
dred dollars  and  does  not  exceed  two  thousand  five  hundred  dol- 
lars, exclusive  of  costs,  an  appeal  shall  be  allowed  to  the  min- 
ister in  such  country,  as  the  case  may  be.  But  the  appellant 
shall  comply  with  the  conditions  established  by  general  regula- 
tions. And  the  ministers  are  hereby  authorized  and  required  to 
receive,  hear,  and  determine  such  appeals. 

Sec.  4093.  On  any  final  judgment  in  any  consular  court  of 
China  or  Japan,  where  the  matter  in  dispute,  exclusive  of  costs, 
exceeds  the  sum  of  two  thousand  five  hundred  dollars,  an 
appeal  shall  be  allowed  to  the  circuit  court  for  the  district  of 
California,  and  upon  such  appeal  a  transcript  of  the  libel,  bill, 
answer,  depositions,  and  all  other  proceedings  in  the  cause  shall 
be  transmitted  to  the  circuit  court,  and  no  new  evidence  shall 
be  received  on  the  hearing  of  the  appeal;  and  the  appeal  shall 
be  subject  to  the  rules,  regulations,  and  restrictions  prescribed 
in  law  for  writs  of  error  from  district  courts  to  circuit  courts. 

Sec.  4094.  On  any  final  judgment  of  the  minister  to  China, 
or  to  Japan,  given  in  the  exercise  of  original  jurisdiction,  where 
the  matter  in  dispute,  exclusive  of  costs,  exceeds  two  thousand 
five  hundred  dollars,  an  appeal  shall  be  allowed  to  the  circuit 
court,  as  provided  in  the  preceding  section. 

Sec  4095.     When    any    final    judgment    of    the    minister    to 


U.  S.  REV.  STAT.,  SEC.  4083-4130  207 

China,  or  to  Japan,  is  given  in  tlie  exercise  of  original  or  of 
appellate  criminal  jurisdiction,  the  person  charged  with  the 
crime  or  offense,  if  he  considers  the  judgment  erroneous  in  point 
of  law,  may  appeal  therefrom  to  the  circuit  court  for  the  district 
of  California;  but  such  appeal  shall  not  operate  as  a  stay  of  pro- 
ceedings, unless  the  minister  certifies  that  there  is  probable 
cause  to  grant  the  same,  when  the  stay  shall  be  such  as  the  in- 
terests of  justice  may  require. 

Sec.  4096.  The  circuit  court  for  the  district  of  California 
is  authorized  and  required  to  receive,  hear,  and  determine  the 
appeals  provided  for  in  this  Title,  and  its  decisions  shall  be  final. 

Sec.  4097.  In  all  cases,  criminal  and  civil,  the  evidence 
shall  be  taken  down  in  writing  in  open  court,  under  such  regu- 
lations as  may  be  made  for  that  purpose;  and  all  objections  to 
the  competency  or  character  of  testimony  shall  be  noted,  with 
the  ruling  in  all  such  cases,  and  the  evidence  shall  be  part 
of  the  case. 

Sec.  4098.  It  shall  be  the  duty  of  the  ministers  and  the  consuls 
in  the  countries  mentioned  in  section  forty  hundred  and  eighty- 
three,  to  encourage  the  settlement  of  controversies  of  a  civil 
character,  by  mutual  agreement,  or  to  submit  them  to  the  decision 
of  referees  agreed  upon  by  the  parties;  and  the  minister  in  each 
country  shall  prepare  a  form  of  submission  for  such  cases,  to  be 
signed  by  the  parties,  and  acknowledged  before  the  consul. 
When  parties  have  so  agreed  to  refer,  the  referees  may,  after 
suitable  notice  of  the  time  and  place  of  meeting  for  the  trial, 
proceed  to  hear  the  case,  and  a  majority  of  them  shall  have 
power  to  decide  the  matter.  If  either  party  refuses  or  neglects 
to  appear,  the  referees  may  proceed  ex  parte.  After  hearing 
any  case  such  referees  may  deliver  their  award,  sealed,  to  the 
consul,  who,  in  court,  shall  open  the  same;  and  if  he  accepts  it, 
he  shall  indorse  the  fact,  and  judgment  shall  be  rendered  there- 
on, and  execution  issue  in  compliance  with  the  terms  thereof. 
The  parties,  however,  may  always  settle  the  same  before  return 
thereof  is  made  to  the  consul. 

Sec.  4099.  In  all  criminal  cases  which  are  not  of  a  heinous 
character,  it  shall  be  lawful  for  the  parties  aggrieved  or  con- 
cerned therein,  with  the  assent  of  the  minister  in  the  country, 
or  consul,  to  adjust  and  settle  the  same  among  themselves,  up- 
on pecuniary  or  other  considerations. 

Sec  4100.  The  ministers  and  consuls  shall  be  fully  author- 
ized to  call  upon  the  local  authorities  to  sustain  and  support 
them  in  the  execution  of  the  powers  confided  to  them  by  treaty, 
and  on  their  part  to  do  and  perform  whatever  is  necessary  to 
carry  the  provisions  of  the  treaties  into  full  effect,  so  far  as 
they  are  to  be  executed  in  the  countries,  respectively. 


208  APPENDIX  II 

Sec.  4101.  In  all  cases,  except  as  herein  otherwise  provided, 
the  punishment  of  crime  provided  for  by  this  title  shall  be  by  fine 
or  imprisonment,  or  both,  at  the  discretion  of  the  officer  who 
decides  the  case,  but  subject  to  the  regulations  herein  contained, 
and  such  as  may  hereafter  be  made.  It  shall,  however,  be  the 
duty  of  such  officer  to  award  punishment  according  to  the  mag- 
nitude and  aggravation  of  the  offense.  Every  person  who  re- 
fuses or  neglects  to  comply  with  the  sentence  passed  upon  him 
shall  stand  committed  until  he  does  comply,  or  is  discharged  by 
order  of  the  consul,  with  the  consent  of  the  minister  in  the 
country. 

Sec.  4102.  Insurrection  or  rebellion  against  the  government 
of  either  of  those  countries,  with  intent  to  subvert  the  same,  and 
murder,  shall  be  capital  offenses,  punishable  with  death;  but  no 
person  shall  be  convicted  of  either  of  those  crimes,  unless  the 
consul  and  his  associates  in  the  trial  all  concur  in  opinion,  and 
the  minister  also  approves  of  the  conviction.  But  it  shall  be 
lawful  to  convict  one  put  upon  trial  for  either  of  these  crimes, 
of  a  less  offense  of  a  similar  character,  if  the  evidence  justifies 
it,  and  to  punish,  as  for  other  offenses,  by  fine  or  imprisonment, 
or  both. 

Sec.  4103.  Whenever  any  person  is  convicted  of  either  of 
the  crimes  punishable  with  death,  in  either  of  those  countries,  it 
shall  be  the  duty  of  the  minister  to  issue  his  warrant  for  the 
execution  of  the  convict,  appointing  the  time,  place,  and  manner; 
but  if  the  minister  is  satisfied  that  the  ends  of  public  justice  de- 
mand it,  he  may  from  time  to  time  postpone  such  execution; 
and  if  he  finds  mitigating  circumstances  which  authorize  it,  he 
may  submit  the  case  to  the  President  for  pardon. 

Sec.  4104.  No  fine  imposed  by  a  consul  for  a  contempt 
committed  in  presence  of  the  court,  or  for  failing  to  obey  a  sum- 
mons from  the  same,  shall  exceed  fifty  dollars;  nor  shall  the 
imprisonment  exceed  twenty-four  hours  for  the  same  contempt. 
Sec.  4105.  Any  consul,  when  sitting  alone  for  the  trial  of 
offenses  or  misdeamors,  shall  decide  finally  all  cases  where  the 
fine  imposed  does  not  exceed  one  hundred  dollars,  or  the  term  of 
imprisonment  does  not  exceed  sixty  days. 

Sec.  4106.  Whenever,  in  any  case,  the  consul  is  of  opinion 
that,  by  reason  of  the  legal  questions  which  may  arise  therein, 
assistance  will  be  useful  to  him,  or  whenever  he  is  of  opinion 
that  severer  punishments  than  those  specified  in  the  preceding 
sections  will  be  required,  he  shall  summon,  to  sit  with  him  on  the 
trial,  one  or  more  citizens  of  the  United  States,  not  exceeding 
four,  and  in  capital  cases  not  less  than  four,  who  shall  be  taken 
by  lot  from  a  list  which  had  previously  been  submitted  to  and 
approved  by  the  minister,  and  shall  be  persons  of  good  repute 


U.  S.  REV.  STAT.,  SEC.  4083-4130  209 

and  competent  for  the  duty.  Every  such  associate  shall  enter 
upon  the  record  his  judgment  and  opinion,  and  shall  sign  the 
same;  but  the  consul  shall  give  judgment  in  the  case.  If  the 
consul  and  his  associates  concur  in  opinion,  the  decision  shall, 
in  all  cases,  except  of  capital  offenses  and  except  as  provided 
in  the  preceding  section,  be  final.  If  any  of  the  associates  differ 
in  opinion  from  the  consul,  the  case,  without  further  proceed- 
ings, together  with  the  evidence  and  opinions,  shall  be  referred 
to  the  minister  for  his  adjudication,  either  by  entering  up 
judgment  therein,  or  by  remitting  the  same  to  the  consul  with 
instructions  how  to   proceed  therewith. 

Sec.  4107.  Each  of  the  consuls  mentioned  in  section  four 
thousand  and  eighty-three  shall  have  at  the  port  for  which  he  is 
appointed,  jurisdiction  as  herein  provided,  in  all  civil  cases 
arising  under  such  treaties,  respectively,  wherein  the  damages 
demanded  do  not  exceed  the  sum  of  five  hundred  dollars;  and,  if 
he  sees  fit  to  decide  the  same  without  aid,  his  decision  thereon 
shall  be  final.  But  whenever  he  is  of  opinion  that  any  such  case 
involves  legal  perplexities,  and  that  assistance  will  be  useful  to 
him,  or  whenever  the  damages  demanded  exceed  five  hundred 
dollars,  he  shall  summon,  to  sit  with  him  on  the  hearing  of  the 
case,  not  less  than  two  nor  more  than  three  citizens  of  the  United 
States,  if  such  are  residing  at  the  port,  who  shall  be  taken 
from  a  list  which  had  previously  been  submitted  to  and  approved 
by  the  minister,  and  shall  be  of  good  repute  and  competent  for 
the  duty.  Every  such  associate  shall  note  upon  the  record 
his  opinion,  and  also,  in  case  he  dissents  from  the  consul,  such 
reasons  therefore  as  he  thinks  proper  to  assign;  but  the  consul 
shall  give  judgment  in  the  case.  If  the  consul  and  his  associates 
concur  in  opinion,  the  judgment  shall  be  final.  If  any  of  the 
associates  differ  in  opinion  from  the  consul,  either  party  may 
appeal  to  the  minister,  under  such  regulations  as  may  exist;  but 
if  no  appeal  is  lawfully  claimed,  the  decision  of  the  consul  shall 
be  final. 

Sec.  4108.  The  jurisdiction  allowed  by  treaty  to  the  minis- 
ters, respectively,  in  the  countries  named  in  section  four  thous- 
and and  eighty-three  shall  be  exercised  by  them  in  those 
countries,   respectively,   wherever   they  may  be. 

Sec.  4109.  The  jurisdiction  of  such  ministers  in  all  matters 
of  civil  redress,  or  of  crimes,  except  in  capital  cases  for  murder 
or  insurrection  against  the  governments  of  such  countries,  re- 
spectively, or  for  offenses  against  the  public  peace  amounting  to 
felony  under  the  laws  of  the  United  States,  shall  be  appellate 
only:  Provided,  That  in  cases  where  a  consular  officer  is  inter- 
ested, either  as  party  or  witness,  such  minister  shall  have 
original  jurisdiction. 


210  APPENDIX  II 

Sec.  4110.  All  such  officers  shall  be  responsible  for  their 
conduct  to  the  United  States,  and  to  the  laws  thereof,  not  only 
as  diplomatic  or  consular  officers,  but  as  judical  officers,  when 
they  perform  judical  duties,  and  shall  be  held  liable  for  all  negli- 
gences and  misconduct  as  public  officers. 

Sec.  4111.  The  President  is  authorized  to  appoint  mar- 
shals for  such  of  the  consular  courts  in  those  countries  as  he 
may  think  proper,  not  to  exceed  seven  in  number,  namely:  one 
in  Japan,  four  in  China,  one  in  Siam,  and  one  in  Turkey,  each 
of  whom  shall  receive  a  salary  of  one  thousand  dollars  a  year, 
in  addition  to  the  fees  allowed  by  the  regulations  of  the  minis- 
ters, respectively,  in  those  countries. 

Sec.  4112.  It  shall  be  the  duty  of  the  marshals,  respectively, 
to  execute  all  process  issued  by  the  minister  of  the  United 
States  in  those  countries,  respectively,  or  by  the  consul  at  the 
port  at  which  they  reside,  and  to  make  due  return  thereof  to 
the  officer  by  whom  it  was  issued,  and  to  conform  in  all  respects 
to  the  regulations  prescribed  by  the  ministers,  respectively,  in 
regard  to  their  duties. 

Sec.  4113.  Each  marshal,  before  entering  upon  the  duties 
of  his  office,  shall  give  bond  for  the  faithful  performance  thereof 
in  a  penal  sum  not  to  exceed  ten  thousand  dollars,  with  two 
sureties  to  be  approved  by  the  Secretary  of  State.  Such  bond 
shall  be  transmitted  to  the  Secretary  of  the  Treasury,  and  a 
certified  copy  thereof  be  lodged  in  the  office  of  the  minister. 

Sec.  4114.  Whenever  any  person  desires  to  bring  suit  up- 
on the  bond  of  any  such  marshal,  it  shall  be  the  duty  of  the 
Secretary  of  the  Treasury,  or  of  the  minister  having  custody  of 
a  copy  of  the  same,  to  give  to  the  person  so  applying  a  certified 
copy  thereof,  upon  which  suit  may  be  brought  and  prosecuted 
with  the  same  effect  as  could  be  done  upon  the  original: 
Provided,  The  Secretary  of  the  Treasury,  or  the  minister  to 
whom  the  application  is  made,  is  satisfied  that  there  is  probable 
cause  of  action  against  the  marshal. 

Sec.  4115.  Upon  a  plea  of  non  est  factum,  verified  upon 
oath,  or  any  other  good  cause  shown,  the  court  or  the  consul 
or  minister  trying  the  cause  may  require  the  original  bond 
of  the  marshal  in  those  countries  to  be  produced;  and  it  shall 
be  the  duty  of  the  Secretary  of  the  Treasury  to  forward  the 
original  bond  to  the  court,  or  consul,  or  minister  requiring  the 
same. 

Sec.  4116.  All  rules,  orders,  writs,  and  processes  of  every 
kind  which  are  intended  to  operate  or  be  enforced  against  any 
of  the  marshals,  in  any  of  the  countries  named  in  this  Title, 
shall  be  directed  to  and  executed  by  such  persons  as  may  be 
appointed  for  that  purpose  by  the  minister  of  consul  issuing  the 
same. 


U.  S.  REV.  STAT.,  SEC.  4083-4130  211 

Sec.  4117.  In  order  to  organize  and  carry  into  effect  tBe 
system  of  jurisprudence  demanded  by  such  treaties,  respectively, 
the  ministers,  with  the  advice  of  the  several  consuls  in  each  of 
the  countries,  respectively,  or  of  so  many  of  them  as  can  be 
conveniently  assembled,  shall  prescribe  the  forms  of  all  pro- 
cesses to  be  issued  by  any  of  the  consuls;  the  mode  of  executing 
and  the  time  of  returning  the  same;  the  manner  in  which  trials 
shall  be  conducted,  and  how  the  records  thereof  shall  be  kept; 
the  form  of  oaths  for  Christian  witnesses,  and  the  mode  of  ex- 
amining all  other  witnesses;  the  costs  to  be  allowed  to  the 
prevailing  party,  and  the  fees  to  be  paid  for  judicial  services; 
the  manner  in  which  all  officers  and  agents  to  execute  process, 
and  to  carry  this  Title  into  effect,  shall  be  appointed  and  com- 
pensated; the  form  of  bail-bonds,  and  the  security  which  shall 
be  required  of  the  party  who  appeals  from  the  decision  of  a 
consul;  and  shall  make  all  such  further  decrees  and  regula- 
tions from  time  to  time,  under  the  provisions  of  this  Title,  as 
the  exigency  may  demand. 

Sec.  4118.  All  such  regulations,  decrees,  and  orders  shall 
be  plainly  drawn  up  in  writing,  and  submitted,  as  herein- 
before provided,  for  the  advice  of  the  consuls,  or  as  many  of 
them  as  can  be  consulted  without  prejudicial  delay  or  incon- 
venience, and  such  consul  shall  signify  his  assent  or  dissent 
in  writing,  with  his  name  subscribed  thereto.  After  taking 
such  advice,  and  considering  the  same,  the  minister  in  each  of 
those  countries  may,  nevertheless,  by  causing  the  decree,  order, 
or  regulation  to  be  published  with  his  signature  thereto,  and  the 
opinions  of  his  advisers  inscribed  thereon,  make  it  binding  and 
obligatory,  until  annulled  or  modified  by  Congress;  and  it  shall 
take  effect  from  the  publication  or  any  subsequent  day  thereto 
named  in  the  act. 

Sec.  4119.  All  such  regulations,  orders,  and  decrees  shall, 
as  speedily  as  may  be  after  publication,  be  transmitted  by  the 
ministers,  with  the  opinions  of  their  advisers,  as  drawn  up  by 
them  severally,  to  the  Secretary  of  State,  to  be  laid  before 
Congress  for  revision. 

Sec.  4120.  It  shall  be  the  duty  of  the  minister  in  each  of 
those  countries  to  establish  a  tariff  of  fees  for  judicial  services, 
which  shall  be  paid  by  such  parties,  and  to  such  persons,  as 
the  minister  shall  direct;  and  the  proceeds  shall,  as  far  as  is  nec- 
essary, be  applied  to  defray  the  expenses  incident  to  the  execu- 
tion of  this  Title;  and  regular  accounts,  both  of  receipts  and 
expenditures,  shall  be  kept  by  the  minister  and  consuls  and 
transmitted  annually  to  the  Secretary  of  State. 

Sec  4121.  The  President,  when  provision  is  not  otherwise 
made,  is  authorized  to  allow,  in  the  adjustment  of  the  accounts 


212  APPENDIX  II 

of  each  of  the  ministers  or  consuls,  the  actual  expenses  of  the 
rent  of  suitable  buildings  or  parts  of  buildings  to  be  used  as 
prisons  for  American  convicts  in  those  countries,  not  to  exceed 
in  any  case  the  rate  of  six  hundred  dollars  a  year;  and  also 
the  wages  of  the  keepers  of  the  same,  and  for  the  care  of 
offenders,  not  to  exceed,  in  any  case,  the  sum  of  eight  hundred 
dollars  per  annum.  But  no  more  than  one  prison  shall  be  hired 
in  Japan,  four  in  China,  one  in  Turkey,  and  one  in  Siam,  at  such 
port  or  ports  as  the  minister,  with  the  sanction  of  the  Presi- 
dent, may  designate,  and  the  entire  expense  of  prison  and 
prison-keepers  at  the  consulate  of  Bangkok,  in  Siam,  shall  not 
exceed  the  sum  of  one  thousand  dollars  a  year. 

Sec.  4122.  The  President  is  authorized  to  allow,  in  the  ad- 
justment of  the  accounts  of  the  consul-general  at  Shanghai,  the 
actual  expense  of  the  rent  of  a  suitable  building,  to  be  used  as 
a  prison  for  American  convicts  in  China,  not  to  exceed  one 
thousand  five  hundred  dollars  a  year;  and  also  the  wages  of 
the  keepers  of  the  same,  and  for  the  care  of  offenders,  not  to 
exceed  five  thousand  dollars  a  year;  and  to  allow,  in  the  ad- 
justment of  the  accounts  of  the  consuls  at  other  ports  in  China, 
the  actual  expense  of  the  hire  of  constables  and  the  care  of 
offenders,  not  to  exceed  in  all  five  thousand  dollars  a  year. 

Sec.  4123.  The  President  is  hereby  authorized  to  allow,  in 
the  adjustment  of  the  accounts  of  the  consul  at  Kanagawa,  the 
actual  expense  of  the  rent  of  a  suitable  building,  to  be  used 
as  a  prison  for  American  convicts  in  Japan,  and  not  to  exceed 
seven  hundred  and  fifty  dollars  a  year;  and  also  the  wages  of 
the  keepers  of  the  same,  and  for  the  care  of  offenders,  not  to 
exceed  two  thousand  five  hundred  dollars  a  year;  and  to  allow 
in  the  adjustment  of  the  accounts  of  the  consuls  at  other  ports 
in  Japan  the  actual  expense  of  the  hire  of  constables  and  the 
care  of  offenders,  not  to  exceed  in  all  two  thousand  five  hundred 
dollars  a  year. 

Sec.  4124.  The  Secretary  of  State,  through  the  minister 
resident  at  Japan,  is  authorized  to  rent,  furnish,  and  keep  suit- 
able buildings,  with  grounds  appurtenant,  in  Jeddo,  or  such  other 
place  as  he  may  designate,  for  a  court-house  and  jail,  at  an 
annual  cost  not  exceeding  five  thousand  dollars:  Provided,  That 
the  period  for  which  the  buildings  shall  be  rented  shall  be  for 
two  years,  with  renewals  for  two  years,  as  the  Secretary  of 
State  may  determine. 

Sec  4125.  The  provisions  of  this  Title,  as  far  as  the  same 
relate  to  crimes  and  offenses  committed  by  citizens  of  the  United 
States,  shall  extend  to  Turkey,  under  the  treaty  with  the  Sub- 
lime Porte  of  May  seventh,  eighteen  hundred  and  thirty,  and 
shall  be  executed  in  the  Ottoman  dominions  in  conformity  with 


U.  S.  REV.  STAT.,  SEC.  4083-4130  213 

the  provisions  of  the  treaty,  and  of  this  Title,  by  the  minister 
and  the  consuls  appointed  to  reside  therein,  who  are  hereby 
ex  officio  vested  with  the  powers  herein  conferred  upon  the 
ministers  and  consuls  in  China,  for  the  purposes  above  ex- 
pressed, so  far  as  regards  the  punishment  of  crime,  and  also 
HOT  the  exercise  of  jurisdiction  in  civil  cases  wherein  the  same 
is  permitted  by  the  laws  of  Turkey,  or  its  usages  in  its  inter- 
course with  the  Franks,  or  other  foreign  Christian  nations. 

Sec.  4126.  The  provisions  of  this  Title  shall  extend  to 
Persia,  in  respect  to  all  suits  and  disputes  which  may  arise  be- 
tween citizens  of  the  United  States  therein;  and  the  minister 
and  consuls  who  may  be  appointed  to  reside  in  Persia  are  here- 
by invested,  in  relation  to  such  suits  and  disputes,  with  such 
powers  as  are  by  this  Title  conferred  upon  the  ministers  and 
consuls  in  China.  All  suits  and  disputes  arising  in  Persia  be- 
tween Persian  subjects  and  citizens  of  the  United  States  shall 
be  carried  before  the  Persian  tribunal  to  which  such  matters 
are  usually  referred,  at  the  place  where  a  consul  or  agent  of 
the  United  States  may  reside,  and  shall  be  discussed  and  de- 
cided according  to  equity,  in  the  presence  of  an  employe  of  the 
consul  or  agent  of  the  United  States;  and  it  shall  be  the  duty 
of  the  consular  officer  to  attend  the  trial  in  person,  and  see 
that  justice  is  administered.  All  suits  and  disputes  occurring 
in  Persia  between  the  citizens  of  the  United  States  and  the  sub- 
jects of  other  foreign  powers,  shall  be  tried  and  adjudicated  by 
the  intermediation  of  their  respective  ministers  or  consuls,  in  ac- 
cordance with  such  regulations  as  shall  be  mutually  agreed 
upon  by  the  minister  of  the  United  States  for  the  time  being, 
and  the  ministers  of  such  foreign  powers,  respectively,  which 
regulations  shall  from  time  to  time  be  submitted  to  the  Secre- 
tary of  State. 

8eo.  4127.  The  provisions  of  this  Title,  so  far  as  the  same 
are  in  conformity  with  the  stipulations  in  existing  treaties  be- 
tween the  United  States  and  Tripoli,  Tunis,  Morocco,  Muscat, 
and  the  Samoan  or  Navigator  Islands,  respectively,  shall  extend 
to  those  countries,  and  shall  be  executed  in  conformity  with  the 
provisions  of  the  treaties  and  of  the  provisions  of  this  Title  by 
the  consuls  appointed  by  the  United  States  to  reside  therein, 
who  are  hereby  ex  officio  invested  with  the  powers  herein  dele- 
gated to  the  ministers  and  consuls  of  the  United  States  appoint- 
ed to  reside  in  the  countries  named  in  section  four  thousand 
and  eighty-three,  so  far  as  the  same  can  be  exercised  under  the 
provisions  of  treaties  between  the  United  States  and  the  several 
countries  mentioned  in  this  section,  and  in  accordance  with  the 
usages  of  the  countries  in  their  intercourse  with  the  Franks  or 
other  foreign  Christian  nations. 


214  APPENDIX  II 

And  whenever  the  United  States  shall  negotiate  a  treaty 
with  any  foreign  government,  in  which  the  American  consul- 
general  or  consul  shall  be  clothed  with  judicial  authority,  and 
securing  the  right  of  trial  to  American  citizens  residing  therein 
before  such  consul-general  or  consul,  and  containing  provisions 
similar  to  or  like  those  contained  in  the  treaties  with  the  gov- 
ernments named  in  this  act,  then  said  title,  so  far  as  the  same 
may  be  applicable,  shall  have  full  force  in  reference  to  said 
treaty,  and  shall  extend  to  the  country  of  the  government  ne- 
gotiating the  same.  [As  amended  by  act  of  June  14,  1878,  20 
Stat.,  131.] 

Sec.  4128.  If  at  any  time  there  be  no  minister  in  either 
of  the  countries  hereinbefore  mentioned,  the  judicial  duties  which 
are  imposed  by  this  Title  upon  the  minister  shall  devolve  upon 
the  Secretary  of  State,  who  is  authorized  and  required  to  dis- 
charge the  same. 

Sec.  4129.  The  provisions  of  this  Title  relating  to  the  jur- 
isdiction of  consular  and  diplomatic  officers  over  civil  and  crim- 
inal cases  in  the  countries  therein  named,  shall  extend  to  any 
country  of  like  character  with  which  the  United  States  may 
hereafter  enter  into  treaty  relations. 

Sec.  4130.  The  word  "minister,"  when  used  in  this  Title 
shall  be  understood  to  mean  the  person  invested  with,  and  ex- 
ercising, the  principal  diplomatic  functions.  The  word  "consul" 
shall  be  understood  to  mean  any  person  invested  by  the  United 
States  with,  and  exercising,  the  functions  of  consul-general,  vice 
consul-general,  consul  or  vice-consul. 


Ill— 1— REORGANIZATION  OF  THE  CONSULAR 
SERVICE,  ACT  OF  APRIL  5,  1906 

An  Act  To  provide  for  the  reorganization  of  the  consular 
service  of  the  United  States. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  the 
consular  system  of  the  United  States  be  reorganized  in  the  man- 
ner hereinafter  provided  in  this  Act. 

Sec.  2.  That  the  consuls-general  and  the  consuls  of  the 
United  States  shall  hereafter  be  classified  and  graded  as  herein- 
after specified,  with  the  salaries  of  each  class  herein  aiflxed 
thereto. 

CONSULS-GENERAL. 

Class  one,  twelve  thousand  dollars. — London,  Paris. 

Class  two,  eight  thousand  dollars. — Berlin,  Habana,  Hong- 
kong, Hamburg,  Rio  de  Janeiro,  Shanghai. 

Class  three,  six  thousand  dollars.— Calcutta,  Cape  Town, 
Constantinople,  Mexico  City,  Montreal,  Ottawa,  Vienna,  Yoko- 
hama. 

Class  four,  five  thousand  five  hundred  dollars. — Antwerp, 
Barcelona,  Brussels,  Canton,  Frankfort,  Marseilles,  Melbourne, 
Panama,  Saint  Petersburg,  Seoul,  Tientsin. 

Class  five,  four  thousand  five  hundred  dollars. — Auckland, 
Beirut,  Buenos  Ayres,  Callao,  Chefoo,  Coburg,  Dresden,  Guaya- 
quil, Halifax,  Hankau,  Mukden,  Munich,  Niuchwang,  Rome,  Rot- 
terdam, Saint  Gall,  Singapore. 

Class  six,  three  thousand  five  hundred  dollars.— Adis  Ababa, 
Bogota,  Budapest,  Guatemala,  Lisbon,  Monterey,  San  Salvador, 
Stockholm,  Tangier. 

Class  seven,  three  thousand  dollars. — Athens,  Christiania, 
Copenhagen. 

CONSULS. 

Class  one,  eight  thousand  dollars. — Liverpool 

Class  two,  six  thousand  dollars— Manchester. 

Class  three,  five  thousand  dollars. — Bremen,  Dawson,  Bel- 
fast, Havre,  Kobe,  Lourengo  Marquez,  Lyon,  Pretoria. 

Class  four,  four  thousand  five  hundred  dollars. — Amoy, 
Amsterdam,  Birmingham,  Cienfuegos,  Fuchau,  Glasgow,  Kingston 
(Jamaica),  Nottingham,  Santiago,  Southampton,  Veracruz,  Val- 
paraiso. 


216  APPENDIX   III 

Class  five,  four  thousand  dollars. — Bahia,  Bombay,  Bordeaux, 
Colon,  Dublin,  Dundee,  Harbin,  Leipzig,  Nanking,  Naples,  Nurem- 
berg, Para,  Pernambuco,  Plauen,  Reichenberg,  Santos,  Stuttgart, 
Toronto,  Tsingtau,  Vancouver,  Victoria. 

Class  six,  three  thousand  five  hundred  dollars. — Apia,  Bar- 
men, Barranquilla,  Basel,  Berne,  Bradford,  Chemnitz,  Chungking, 
Cologne,  Dalny,  Durban,  Edinburgh,  Geneva,  Genoa,  Georgetown, 
Lucerne,  Mannheim,  Montevideo,  Nagasaki,  Odessa,  Palermo, 
Port  Elizabeth,  Prague,  Quebec,  Rimouski,  San  Juan  del  Norte, 
Sherbrooke,  Smyrna,  Three  Rivers  (Quebec),  Vladivostok,  Win- 
nipeg, Zurich. 

Class  seven,  three  thousand  dollars. — Aix  la  Chapelle,  Anna- 
berg,  Barbados,  Batavia,  Burslem,  Calais,  Carlsbad,  Colombo, 
Dunfermline,  Dusseidorf,  Florence,  Freiburg,  Ghent,  Hamilton 
(Ontario),  Hanover,  Harput,  Huddersfield,  Iquitos,  Jerusalem, 
Kehl,  La  Guaira,  Leghorn,  Liege,  Mainz,  Malaga,  Managua, 
Nantes,  Nassau,  Newcastle  (New  South  Wales),  Newcastle  (Eng- 
land), Port  Antonio,  Port  au  Prince,  Sandakan,  Seville,  Saint 
John  (New  Brunswick),  Saint  Michaels,  Saint  Thomas  (West 
Indies),  San  Jose,  Sheffield,  Swansea,  Sydney  (Nova  Scotia), 
Sydney  (New  South  Wales),  Tabriz,  Tampico,  Tamsui,  Trieste, 
Trinidad. 

Class  eight,  two  thousand  five  hundred  dollars. — Acapulco, 
Aden,  Algiers,  Alexandretta,  Bamberg,  Batum,  Belize,  Bergen, 
Breslau,  Brunswick,  Cardiff,  Chihuahua,  Ciudad  Juarez,  Ciudad 
Porfirio  Diaz,  Collingwood,  Cork,  Crefeld,  Curacao,  Eibenstock, 
Gothenburg,  Hamilton  (Bermuda),  Hull,  Jerez  de  la  Frontera, 
La  Rochelle,  Leeds,  Madrid,  Magdeburg,  Malta,  Maracaibo,  Mar- 
tinique, Matamoros,  Mazatlan,  Milan,  Moscow,  Nice,  Nogales, 
Nuevo  Laredo,  Orillia,  Plymouth,  Port  Hope,  Port  Limon,  Pres- 
cott,  Puerto  Cortez,  Rheims,  Rosario,  Roubaix,  Saint  Johns  (New- 
foundland) ^  Saint  Etienne,  Sarnia,  Sault  Sainte  Marie,  Stettin, 
Tamatave,  Tegucigalpa,  Teneriffe,  Trebizond,  Valencia,  Weimar, 
Windsor  (Ontario),  Yarmouth,  Zanzibar,  Zittau. 

Class  nine,  two  thousand  dollars. — Aguascalientes,  Antigua, 
Asuncion,  Bagdad,  Belleville,  Belgrade,  Bristol,  Campbellton, 
Cape  Gracias,  Cape  Haitien,  Cartagena,  Castellamare  di  Stabia, 
Catania,  Ceiba,  Charlottetown,  Coaticook,  Cornwall,  Durango, 
Ensenada,  Fort  Erie,  Funchal,  Gaspe,  Gibraltar,  Glauchau,  Goree- 
Dakar,  Grenoble,  Guadeloupe,  Hermosillo,  Hobart,  Iquique, 
Jalapa,  Jamestown,  Kingston  (Ontario),  La  Paz,  Limoges,  Man- 
zanillo,  Maskat,  Messina,  Moncton,  Niagara  Falls,  Patras,  Port 
Louis,  Port  Rowan,  Port  Stanley,  Progreso,  Puerto  Cabello, 
Puerto  Plata,  Riga,  Rouen,  Saigon,  Saint  Christopher,  Saint 
Hyacinthe,  Saint  Johns  (Quebec),  Saint  Pierre,  Saint  Stephen, 
Saltillo,    Sierra    Leone,    Sivas,    Stavanger,    Suva,    Tahiti,    Turin,. 


REORGANIZATION   ACT    OF    1906  217 

Turks  Island,  Tuxpam,  Utilla,  Venice,  Warsaw,  Windsor   (Nova 
Scotia),  Woodstock. 

Sec.  3.  That  the  offices  of  vice-consuls-general,  deputy  con- 
suls-general, vice-consuls,  and  deputy  consuls  shall  be  filled  by 
appointment,  as  heretofore,  except  that  whenever,  in  his  judg- 
ment, the  good  of  the  service  requires  it,  consuls  may  be  desig- 
nated by  the  President  without  thereby  changing  their  classifi- 
cation to  act  for  a  period  not  to  exceed  one  year  as  vice-consuls- 
general,  deputy  consuls-general,  vice-consuls,  and  deputy  consuls; 
and  when  so  acting  they  shall  not  be  deemed  to  have  vacated 
their  offices  as  consuls.  Consular  agents  may  be  appointed,  when 
necessary,  as  heretofore.  The  grade  of  commercial  agent  is 
abolished. 

Sec.  4.  That  there  shall  be  five  inspectors  of  consulates,  to 
be  designated  and  commissioned  as  consuls-general  at  large,  who 
shall  receive  an  annual  salary  of  five  thousand  dollars  each,  and 
shall  be  paid  their  actual  and  necessary  traveling  and  subsist- 
ence expenses  while  traveling  and  inspecting  under  instructions 
from  the  Secretary  of  State.  They  shall  be  appointed  by  the 
President,  with  the  advice  and  consent  of  the  Senate,  from  the 
members  of  the  consular  force  possessing  the  requisite  qualifica- 
tions of  experience  and  ability.  They  shall  make  such  inspections 
of  consular  offices  as  the  Secretary  of  State  shall  direct,  and  shall 
report  to  him.  Each  consular  office  shall  be  inspected  at  least 
once  in  every  two  years.  Whenever  the  President  has  reason  to 
believe  that  the  business  of  a  consulate  or  a  consulate-general 
is  not  being  properly  conducted  and  that  it 'is  necessary  for  the 
public  interest,  he  may  authorize  any  consul-general  at  large  to 
suspend  the  consul,  or  consul-general,  and  administer  the  office 
in  his  stead  for  a  period  not  exceeding  ninety  days.  In  such 
case  the  consul-general  at  large  so  authorized  shall  have  power 
to  suspend  any  vice  or  deputy  consular  officer  or  clerk  in  said 
office  during  the  period  aforesaid.  The  provisions  of  law  relating 
to  the  official  bonds  of  consuls-general,  and  the  provisions  of 
sections  seventeen  hundred  and  thirty-four,  seventeen  hundred 
and  thirty-five,  and  seventeen  hundred  and  thirty-six.  Revised 
Statutes  of  the  United  States,  shall  apply  to  consuls-general  at 
large. 

Sec.  5.  No  person  who  is  not  an  American  citizen  shall  be 
appointed  hereafter  in  any  consulate-general  or  consulate  to  any 
clerical  position  the  salary  of  which  is  one  thousand  dollars  a 
year  or  more. 

Sec.  6.  Sections  sixteen  hundred  and  ninety-nine  and  seven- 
teen hundred  of  the  Revised  Statutes  of  the  United  States  are 
hereby  amended  to  read  as  follows: 

"Sec.    1699.     No    consul-general,    consul,    or    consular   agent 


218  APPENDIX   III 

receiving  a  salary  of  more  than  one  thousand  dollars  a  year  shall, 
while  he  holds  his  office,  be  interested  in  or  transact  any  busi- 
ness as  a  merchant,  factor,  broker,  or  other  trader,  or  as  a  clerk 
or  other  agent  for  any  such  person  to,  from,  or  within  the  port, 
place,  or  limits  of  his  jurisdiction,  directly  or  indirectly,  either 
in  his  own  name  or  in  the  name  or  through  the  agency  of  any 
other  person;  nor  shall  he  practice  as  a  lawyer  for  compensation 
or  be  interested  in  the  fees  or  compensation  of  any  lawyer;  and 
he  shall  in  his  official  bond  stipulate  as  a  condition  thereof  not 
to  violate  this  prohibition. 

"Sec.  1700.  All  consular  ofiicers  whose  respective  salaries 
exceed  one  thousand  dollars  a  year  shall  be  subject  to  the  pro- 
hibition against  transacting  business,  practicing  as  a  lawyer,  or 
being  interested  in  the  fees  or  compensation  of  any  lawyer  con- 
tained in  the  preceding  section.  And  the  President  may  extend 
the  prohibition  to  any  consul-general,  consul,  or  consular  agent 
whose  salary  does  not  exceed  one  thousand  dollars  a  year  or 
who  may  be  compensated  by  fees,  and  to  any  vice  or  deputy 
consular  ofllcer  or  consular  agent,  and  may  require  such  oflBcer 
to  give  a  bond  not  to  violate  the  prohibition." 

Sec.  7.  That  every  consular  ofiicer  of  the  United  States  is 
hereby  required,  whenever  application  is  made  to  him  therefor, 
within  the  limits  of  his  consulate,  to  administer  to  or  take  from 
any  person  any  oath,  affirmation  ,aflBdavit,  or  deposition,  and  to 
perform  any  other  notarial  act  which  any  notary  public  is  re- 
quired or  authorized  by  law  to  do  within  the  United  States;  and 
for  every  such  notarial  act  performed  he  shall  charge  in  each 
instance  the  appropriate  fee  prescribed  by  the  President  under 
section  seventeen  hundred  and  forty-five.  Revised  Statutes. 

Sec.  8.  That  all  fees,  official  or  unofficial,  received  by  any 
officer  in  the  consular  service  for  services  rendered  in  connection 
with  the  duties  of  his  office  or  as  a  consular  officer,  including  fees 
for  notarial  services,  and  fees  for  taking  depositions,  executing 
commissions  or  letters  rogatory,  settling  estates,  receiving  or 
paying  out  moneys,  caring  for  or  disposing  of  property,  shall  be 
accounted  for  and  paid  into  the  Treasury  of  the  United  States, 
and  the  sole  and  only  compensation  of  such  officers  shall  be  by 
salaries  fixed  by  law;  but  this  shall  not  apply  to  consular  agents, 
who  shall  be  paid  by  one  half  of  the  fees  received  in  their  offices, 
up  to  a  maximum  sum  of  one  thousand  dollars  in  any  one  year, 
the  other  half  being  accounted  for  and  paid  into  the  Treasury  of 
the  United  States.  And  vice-consuls-general,  deputy  consuls- 
general,  vice-consuls,  and  deputy  consuls,  in  addition  to  such 
compensation  as  they  may  be  entitled  to  receive  as  consuls  or 
clerks,  may  receive  such  portion  of  the  salaries  of  the  consul- 


U.  S.  COURT  FOR  CHINA,  ACT  OF  1906  219 

general  or  consuls  for  whom  they  act  as  shall  be  provided  by 
regulation. 

Seo.  9.  That  fees  for  the  consular  certification  of  invoices 
shall  be,  and  they  hereby  are,  included  with  the  fees  for  official 
services  for  which  the  President  is  authorized  by  section  seven- 
teen hundred  and  forty-five  of  the  Revised  Statutes  to  prescribe 
rates  or  tariffs;  and  sections  twenty-eight  hundred  and  fifty -one 
and  seventeen  hundred  and  twenty-one  of  the  Revised  Statutes 
are  hereby  repealed. 

Sec.  10.  That  every  consular  officer  shall  be  provided  and 
kept  supplied  with  adhesive  official  stamps,  on  which  shall  be 
printed  the  equivalent  money  value  of  denominations  and  to 
amounts  to  be  determined  by  the  Department  of  State,  and  shall 
account  quarterly  to  the  Department  of  State  for  the  use  of  such 
stamps  and  for  such  of  them  as  shall  remain  in  his  hands. 

Whenever  a  consular  officer  is  required  or  finds  it  necessary 
to  perform  any  consular  or  notarial  act  he  shall  prepare  and  de- 
liver to  the  party  or  parties  at  whose  instance  such  act  is  per- 
formed a  suitable  and  appropriate  document  as  prescribed  in  the 
consular  regulations  and  affix  thereto  and  duly  cancel  an  adhe- 
sive stamp  or  stamps  of  the  denomination  or  denominations 
equivalent  to  the  fee  prescribed  for  such  consular  or  notarial 
act,  and  no  such  act  shall  be  legally  valid  within  the  jurisdiction 
of  the  Government  of  the  United  States  unless  such  stamp  or 
stamps  is  or  are  affixed  and  canceled. 

Sec.  11.  That  this  Act  shall  take  effect  on  the  thirtieth  day 
of  June,  nineteen  hundred  and  six. 

Sec.  12.  That  all  Acts  or  parts  of  Acts  inconsistent  with  this 
Act  are  hereby  repealed. 

Approved,  April  5,  1906. 


iri_2-UmTED  STATES  COURT  FOR  CHINA, 
ACT  OF  JUA^E  30,  1906 


An  Act  Creating  a  United  States  court  for  China  and  pre- 
scribing the  jurisdiction  thereof. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled.  That  a  court 
is  hereby  established,  to  be  called  the  United  States  court  for 
China,  which  shall  have  exclusive  jurisdiction  in  all  cases  and 
judicial  proceedings  whereof  jurisdiction  may  now  be  exercised 
by  United  States  consuls  and  ministers  by  law  and  by  virtue  of 
treaties  between  the  United  States  and  China,  except  in  so  far 


220  APPENDIX   III 

as  the  said  jurisdiction  is  qualified  bj^  section  two  of  this  Act. 
The  said  court  shall  hold  sessions  at  Shanghai,  China,  and  shall 
also  hold  sessions  at  the  cities  of  Canton,  Tientsin,  and  Hankau 
at  stated  periods,  the  dates  of  such  sessions  at  each  city  to  be 
announced  in  such  manner  as  the  court  shall  direct,  and  a  session 
of  the  court  shall  be  held  in  each  of  these  cities  at  least  once 
annually.  It  shall  be  within  the  power  of  the  judge,  upon  due 
notice  to  the  parties  in  litigation,  to  open  and  hold  court  for  the 
hearing  of  a  special  cause  at  any  place  permitted  by  the  treaties, 
and  where  there  is  a  United  States  consulate,  when,  in  his  judg- 
ment, it  shall  be  required  by  the  convenience  of  witnesses,  or  by 
some  public  interest.  The  place  of  sitting  of  the  court  shall  be 
in  the  United  States  consulate  at  each  of  the  cities,  respectively. 

That  the  seal  of  the  said  United  States  court  for  China  shall 
be  the  arms  of  the  United  States,  engraved  on  a  circular  piece 
of  steel  of  the  size  of  a  half  dollar,  with  these  words  on  the 
margin,  "The  Seal  of  the  United  States  Court  for  China." 

The  seal  of  said  court  shall  be  provided  at  the  expense  of  the 
United  States. 

All  writs  and  processes  issuing  from  the  said  court,  and  all 
transcripts,  records,  copies,  jurats,  acknowledgments,  and  other 
papers  requiring  certification  or  to  be  under  seal,  may  be  authen- 
ticated by  said  seal,  and  shall  be  signed  by  the  clerk  of  said 
court.  All  processes  issued  from  the  said  court  shall  bear  test 
from  the  day  of  such  issue. 

Sec.  2.  The  consuls  of  the  United  States  in  the  cities  of 
China  to  which  they  are  respectively  accredited  shall  have  the 
same  jurisdiction  as  they  now  possess  in  civil  cases  where  the 
sum  or  value  of  the  property  involved  in  the  controversy  does 
not  exceed  five  hundred  dollars  United  States  money  and  in 
criminal  cases  where  the  punishment  for  the  offense  charged  can 
not  exceed  by  law  one  hundred  dollars  fine  or  sixty  days'  im- 
prisonment, or  both,  and  shall  have  power  to  arrest,  examine, 
and  discharge  accused  persons  or  commit  them  to  the  said  court. 
From  all  final  judgments  of  the  consular  court  either  party  shall 
have  the  right  of  appeal  to  the  United  States  court  for  China: 
Provided,  also,  That  appeal  may  be  taken  to  the  United  States 
court  for  China  from  any  final  judgment  of  the  consular  courts 
of  the  United  States  in  Korea  so  long  as  the  rights  of  extraterri- 
toriality shall  obtain  in  favor  of  the  United  States.  The  said 
United  States  court  for  China  shall  have  and  exercise  supervisory 
control  over  the  discharge  by  consuls  and  vice-consuls  of  the 
duties  prescribed  by  the  laws  of  the  United  States  relating  to  the 
estates  of  decedents  in  China.  Within  sixty  days  after  the  death 
in  China  of  any  citizen  of  the  United  States,  or  any  citizen  of  any 
territory  belonging  to  the  United  States,  the  consul  or  vice-consul 


U.  S.  COURT  FOR  CHINA,  ACT  OF  1906  221 

whose  duty  it  becomes  to  take  possession  of  the  effects  of  such 
deceased  person  under  the  laws  of  the  United  States  shall  file 
with  the  clerk  of  said  court  a  sworn  inventory  of  such  effects, 
and  shall  as  additional  effects  come  from  time  to  time  into  his 
possession  immediately  file  a  supplemental  inventory  or  inven- 
tories of  the  same.  He  shall  also  file  with  the  clerk  of  said  court 
within  sixty  days  a  schedule  under  oath  of  the  debts  of  said 
decedent,  so  far  as  known,  and  a  schedule  or  statement  of  all 
additional  debts  thereafter  discovered.  Such  consul  or  vice- 
consul  shall  pay  no  claims  against  the  estate  without  the  written 
approval  of  the  judge  of  said  court,  nor  shall  he  make  sale  of 
any  of  the  assets  of  said  estate  without  first  reporting  the  same 
to  said  judge  and  obtaining  a  written  approval  of  said  sale,  and 
he  shall  likewise  within  ten  days  after  any  such  sale  report  the 
fact  of  such  sale  to  said  court,  and  the  amount  derived  there- 
from. The  said  judge  shall  have  power  to  require  at  any  time 
reports  from  consuls  or  vice-consuls  in  respect  of  all  their  acts 
and  doings  relating  to  the  estate  of  any  such  deceased  person. 
The  said  court  shall  have  power  to  require  where  it  may  be 
necessary  a  special  bond  for  the  faithful  performance  of  his  duty 
to  be  given  by  any  consul  or  vice-consul  into  whose  possession 
the  estate  of  any  such  deceased  citizen  shall  have  come  in  such 
amount  and  with  such  sureties  as  may  be  deemed  necessary,  and 
for  failure  to  give  such  bond  when  required,  or  for  failure  to 
properly  perform  his  duties  in  the  premises,  the  court  may  ap- 
point some  other  person  to  take  charge  of  said  estate,  such  per- 
son having  first  given  bond  as  aforesaid.  A  record  shall  be  kept 
by  the  clerk  of  said  court  of  all  proceedings  in  respect  of  any 
such  estate  under  the  provisions  hereof. 

Sec.  3.  That  appeals  shall  lie  from  all  final  judgments  or 
decrees  of  said  court  to  the  United  States  circuit  court  of  appeals  of 
the  ninth  judicial  circuit,  and  thence  appeals  and  writs  of  error 
may  be  taken  from  the  judgments  or  decrees  of  the  said  circuit 
court  of  appeals  to  the  Supreme  Court  of  the  United  States  in 
the  same  class  of  cases  as  those  in  which  appeals  and  writs  of 
error  are  permitted  to  judgments  of  said  court  of  appeals  in  cases 
coming  from  district  and  circuit  courts  of  the  United  States. 
Said  appeals  or  writs  of  error  shall  be  regulated  by  the  procedure 
governing  appeals  within  the  United  States  from  the  district 
courts  to  the  circuit  courts  of  appeal,  and  from  the  circuit  courts 
of  appeal  to  the  Supreme  Court  of  the  United  States,  respec- 
tively, so  far  as  the  same  shall  be  applicable;  and  said  courts 
are  hereby  empowered  to  hear  and  determine  appeals  and  writs 
of  error  so  taken. 

Sec.  4.  The  jurisdiction  of  said  United  States  court,  both 
original  and  on  appeal,  in  civil  and  criminal  matters,  and  also 


222  APPENDIX   III 

the  jurisdiction  of  the  consular  courts  in  China,  shall  in  all  cases 
be  exercised  in  conformity  with  said  treaties  and  the  laws  of  the 
United  States  now  in  force  in  reference  to  the  American  consular 
courts  in  China,  and  all  judgments  and  decisions  of  said  consular 
courts,  and  all  decisions,  judgments,  and  decrees  of  said  United 
States  court,  shall  be  enforced  in  accordance  with  said  treaties 
and  laws.  But  in  all  such  cases  when  such  laws  are  deficient  in 
the  provisions  necessary  to  give  jurisdiction  or  to  furnish  suitable 
remedies,  the  common  law  and  the  law  as  established  by  the 
decisions  of  the  courts  of  the  United  States  shall  be  applied  by 
said  court  in  its  decisions  and  shall  govern  the  same  subject  to 
the  terms  of  any  treaties  between  the  United  States  and  China. 

Sec.  5.  That  the  procedure  of  the  said  court  shall  be  in 
accordance,  so  far  as  practicable,  with  the  existing  procedure 
prescribed  for  consular  courts  in  China  in  accordance  with  the 
Revised  Statutes  of  the  United  States:  Provided,  however.  That 
the  judge  of  the  said  United  States  court  for  China  shall  have 
authority  from  time  to  time  to  modify  and  supplement  said  rules 
of  procedure.  The  provisions  of  sections  forty-one  hundred  and 
six  and  forty-one  hundred  and  seven  of  the  Revised  Statutes  of 
the  United  States  allowing  consuls  in  certain  cases  to  summon 
associates  shall  have  no  application  to  said  court. 

Sec.  6.  There  shall  be  a  district  attorney,  a  marshal,  and  a 
clerk  of  said  court,  with  authority  possessed  by  the  correspond- 
ing ofBcers  of  the  district  courts  in  the  United  States  as  far  as 
may  be  consistent  with  the  conditions  of  the  laws  of  the  United 
States  and  said  treaties.  The  judge  of  said  court  and  the  district 
attorney,  who  shall  be  lawyers  of  good  standing  and  experience, 
marshal,  and  clerk  shall  be  appointed  by  the  President,  by  and 
with  the  advice  and  consent  of  the  Senate,  and  shall  receive  as 
salary,  respectively,  the  sums  of  eight  thousand  dollars  per  an- 
num for  said  judge,  four  thousand  dollars  per  annum  for  said 
district  attorney,  three  thousand  dollars  per  annum  for  said  mar- 
shal, and  three  thousand  dollars  per  annum  for  said  clerk.  The 
judge  of  the  said  court  and  the  district  attorney  shall,  when  the 
sessions  of  the  court  are  held  at  other  cities  than  Shanghai,  re- 
ceive in  addition  to  their  salaries  their  necessary  expenses 
during  such  sessions  not  to  exceed  ten  dollars  per  day  for  the 
judge  and  five  dollars  per  day  for  the  district  attorney. 

Sec.  7.  The  tenure  of  office  of  the  judge  of  said  court  shall 
be  ten  years,  unless  sooner  removed  by  the  President  for  cause; 
the  tenure  of  office  of  the  other  officials  of  the  court  shall  be  at 
the  pleasure  of  the  President. 

Sec.  8.  The  marshal  and  the  clerk  of  said  court  shall  be 
required  to  furnish  bond  for  the  faithful  performance  of  their 
duties,  in  sums  and  with  sureties  to  be  fixed  and  approved  by  the 


EXECUTIVE   ORDER,  JUNE   27,  1906  223 

judge  of  the  court.  They  shall  each  appoint,  with  the  written 
approval  of  said  judge,  deputies  at  Canton  and  Tientsin,  who 
shall  also  be  required  to  furnish  bonds  for  the  faithful  perform- 
ance of  their  duties,  which  bonds  shall  be  subject,  both  as  to 
form  and  sufficiency  of  the  sureties,  to  the  approval  of  said  judge. 
Such  deputies  shall  receive  compensation  at  the  rate  of  five  dol- 
lars for  each  day  the  sessions  of  the  court  are  held  at  their 
respective  cities.  The  office  of  marshal  in  China  now  existing  in 
pursuance  of  section  forty-one  hundred  and  eleven  of  the  Revised 
Statutes  is  hereby  abolished. 

Sec.  9.  The  tariff  of  fees  of  said  officers  of  the  court  shall 
be  the  same  as  the  tariff  already  fixed  for  the  consular  courts  in 
China,  subject  to  amendment  from  time  to  time  by  order  of  the 
President,  and  all  fees  taxed  and  received  shall  be  paid  into  the 
Treasury  of  the  United  States. 

Appi'oved,  June  30,  1906. 


III_3_EXECUTIVE    ORDER,    JUNE   27,  1906,  CON- 
SULAR SERVICE,  REGULATIONS  GOVERNING 
APPOINTMENTS    AND    PROMOTIONS 

Whereas,  The  Congress,  by  Section  1753  of  the  Revised  Stat- 
utes of  the  United  States  has  provided  as  follows:  — 

"The  President  is  authorized  to  prescribe  such  regulations  for 
the  admission  of  persons  into  the  civil  service  of  the  United  States 
as  may  best  promote  the  efficiency  thereof,  and  ascertain  the  fitness 
of  each  candidate  in  respect  to  age,  health,  character,  knowledge, 
and  ability  for  the  branch  of  service  into  which  he  seeks  to  enter; 
and  for  this  purpose  he  may  employ  suitable  persons  to  conduct 
such  inquiries,  and  may  prescribe  their  duties,  and  establish  regu- 
lations for  the  conduct  of  persons  who  may  receive  appointments 
in  the  civil  service." 

And,  whereas,  the  Congress  has  classified  and  graded  the 
consuls-general  and  consuls  of  the  United  States  by  the  act  enti- 
tled "An  act  to  provide  for  the  reorganization  of  the  consular 
service  of  the  United  States,"  approved  April  5,  1906,  and  has 
thereby  made  it  practicable  to  extend  to  that  branch  of  the  civil 
service  the  aforesaid  provisions  of  the  Revised  Statutes  and  the 
principles  embodied  in  the  Civil  Service  Act  of  January  16,  1883. 

Now,  therefore,  in  the  exercise  of  the  powers  conferred  upon 
him  by  the  Constitution  and  laws  of  the  United  States,  the 
President  makes  the  following  regulations  to  govern  the  selecion 
of  consuls-general  and  consuls  in  the  civil  service  of  the  United 
States,  subject  always  to  the  advice  and  consent  of  the  Senate:  — 


224  APPENDIX   III 

1.  Vacancies  in  the  oflBce  of  consul  general  and  in  the  office 
of  consul  above  class  8  shall  be  filled  by  promotion  from  the 
lower  grades  of  the  consular  service,  based  upon  ability  and  effi- 
ciency as  shown  in  the  service. 

2.  Vacancies  in  the  office  of  consul  of  class  8  and  of  consul 
of  class  9  shall  be  filled: 

(a)  By  promotion  on  the  basis  of  ability  and  efficiency  as 
shown  in  the  service,  of  consular  clerks,  and  of  vice  consuls, 
deputy  consuls,  and  consular  agents  who  shall  have  been  ap- 
pointed to  such  offices  upon  examination. 

(b)  By  new  appointments  of  candidates  who  have  passed  a 
satisfactory  examination  for  appointment  as  consul  as  hereafter 
provided. 

3.  Persons  in  the  service  of  the  Department  of  State  with 
salaries  of  two  thousand  dollars  or  upwards  shall  be  eligible  for 
promotion,  on  the  basis  of  ability  and  efficiency  as  shown  in  the 
service,  to  any  grade  of  the  consular  service  above  class  8  of 
consuls. 

4.  The  Secretary  of  State,  or  such  officer  of  the  Department 
of  State  as  the  President  shall  designate,  the  Chief  of  the  Con- 
sular Bureau,  and  the  Chief  Examiner  of  the  Civil  Service  Com- 
mission, or  some  person  whom  said  Commission  shall  designate, 
shall  constitute  a  Board  of  Examiners  for  admission  to  the 
consular  service. 

5.  It  shall  be  the  duty  of  the  Board  of  Examiners  to  formu- 
late rules  for  and  hold  examinations  of  applicants  for  admission 
to  the  consular  service. 

6.  The  scope  and  method  of  the  examinations  shall  be  deter- 
mined by  the  Board  of  Examiners,  but  among  the  subjects  shall 
be  included  at  least  one  modern  language  other  than  English;  the 
natural,  industrial  and  commercial  resources  and  the  commerce 
of  the  United  States,  especially  with  reference  to  the  possibiities 
of  increasing  and  extending  the  trade  of  the  United  States 
with  foreign  countries;  political  economy;  elements  of  interna- 
tional, commercial  and  maritime  law. 

7.  Examination  papers  shall  be  rated  on  a  scale  of  100,  and 
no  person  rated  at  less  than  80  shall  be  eligible  for  certification. 

8.  No  one  shall  be  examined  who  is  under  twenty-one  or 
over  fifty  years  of  age,  or  who  is  not  a  citizen  of  the  United 
States,  or  who  is  not  of  good  character  and  habits  and  physically 
and  mentally  qualified  for  the  proper  performance  of  consular 
work,  or  who  has  not  been  specially  designated  by  the  President 
for  appointment  to  the  consular  service  subject  to  examination. 

9.  Whenever  a  vacancy  shall  occur  in  the  eighth  or  ninth 
class  of  consuls  which  the  President  may  deem  it  expedient  to 
fill,  the  Secretary  of  State  shall  inform  the  Board  of  Examiners, 


EXECUTIVE  ORDER,  JUNE  27,  1906  225 

who  shall  certify  to  him  the  list  of  those  persons  eligible  for 
appointment,  accompanying  the  certificate  with  a  detailed  report 
showing  the  qualifications,  as  revealed  by  examination,  of  the 
persons  so  certified.  If  it  be  desired  to  fill  a  vacancy  in  a  con- 
sulate in  a  country  in  which  the  United  States  exercises  extra- 
territorial jurisdiction,  the  Secretary  of  State  shall  so  inform  the 
Board  of  Examiners,  who  shall  include  in  the  list  of  names  certi- 
fied by  it  only  such  persons  as  have  passed  the  examination  pro- 
vided for  in  this  order,  and  who  also  have  passed  an  examina- 
tion in  the  fundamental  principles  of  common  law,  the  rules  of 
evidence  and  the  trial  of  civil  and  criminal  cases.  The  list  of 
names  which  the  Board  of  Examiners  shall  certify  shall  be  sent 
to  the  President  for  his  information. 

10.  No  promotion  shall  be  made  except  for  eflSciency,  as 
shown  by  the  work  that  the  officer  has  accomplished,  the  ability, 
promptness  and  diligence  displayed  by  him  in  the  performance  of 
all  his  official  duties,  his  conduct  and  his  fitness  for  the  consular 
service. 

11.  It  shall  be  the  duty  of  the  Board  of  Examiners  to  formu- 
late rules  for  and  hold  examinations  of  persons  designated  for 
appointment  as  consular  clerk,  and  of  such  persons  designated  for 
appointment  as  vice-consul,  deputy  consul  and  consular  agent,  as 
shall  desire  to  become  eligible  for  promotion.  The  scope  and 
method  of  such  examination  shall  be  determined  by  the  Board 
of  Examiners,  but  it  shall  include  the  sam.e  subjects  hereinbefore 
prescribed  for  the  examination  of  consuls.  Any  vice-consul, 
deputy  consul  or  consular  agent  now  in  the  service,  upon  passing 
such  an  examination  shall  become  eligible  for  promotion,  as  if 
appointed  upon  such  examination. 

12.  In  designations  for  appointment  subject  to  examination 
and  in  appointments  after  examination,  due  regard  will  be  had  to 
the  rule,  that  as  between  candidates  of  equal  merit,  appointments 
should  be  so  made  as  to  secure  proportional  representation  of  all 
the  States  and  Territories  in  the  consular  service;  and  neither 
in  the  designation  for  examination  or  certification  or  appointment 
will  the  political  affiliations  of  the  candidate  be  considered. 

THEODORE   ROOSEVELT 

The  White  House,  June  27th,  1906 


How 

com- 
menced 

Three 
classes  Of 
action. 


Demand 
neces- 
sary in 
contract 
and  re- 
plevin 

Peti- 
tioner 
must  de- 
po.sit 
money 
Notice 
to    de- 
fendant 


Service 


Default 


Dam- 
ages 


Answer. 


Amend- 
ments 


IV— 1— CONSULAR  COURT  REGULATIONS 
FOR  CHINA,  GENERAL,  1864 

I  —  ORDINARY     CIVIL     PROCEEDINGS 

1  —  Civil  proceedings  between  American  citizens  must  com- 
mence by  written  petition  verified  by  oath  before  the  consul. 

2  —  Ordinary  personal  civil  actions  are  of  three  classes, 
viz.:  Contract,  comprising  all  cases  of  contract  or  debt;  wrong, 
when  damages  are  claimed  for  a  wrong;  replevin,  when  pos- 
session of  a  specific  article  is  claimed. 

3  —  In  contract,  the  petition  must  aver  that  payment,  or  a 
performance  of  the  conditions  of  contract,  has  been  demanded 
and  withheld;  and,  in  replevin,  that  the  articles  to  be  replevied 
have  been  demanded. 

4  —  The  petitioner  shall  be  required  to  deposit  a  reasonable 
sum  to  defray  the  probable  expenses  of  court  and  defendant's 
costs;   subsequent  deposits  may  be  required  if  found  necessary. 

5  —  Upon  deposit  of  the  money,  the  consul  shall  order  no- 
tice on  the  petition,  in  writing,  directing  defendant  to  appear 
before  the  court  at  a  given  day  and  hour,  to  file  his  written 
answer  on  oath. 

6  —  Notice  must  be  served  on  each  defendant  at  least  five 
days  before  return  day,  by  delivery  of  an  attested  copy  of  the 
petition  and  order,  and  of  any  accompanying  account  or  paper. 

7  —  Personal  service  should  always  be  required  when  prac- 
ticable. 

8  —  On  proof  of  due  notice,  judgment  by  default  shall  be 
procured  against  any  defendant  failing  to  appear  and  file  his 
answer  as  required;  but  the  default  may  be  taken  off  for  good 
cause  within  one  day  after,  exclusive  of  Sunday. 

9  —  But  in  actions  of  wrong,  and  all  others  where  the  dam- 
ages are  in  their  nature  unliquidated  and  indefinite,  so  that 
they  cannot  be  calculated  with  precision  from  the  statement  of 
the  petition,  the  amount  of  the  judgment  shall  be  ascertained 
by  evidence,  nothwithstanding  the  default. 

10  —  If  defendant  appears  and  answers,  the  consul,  having 
both  parties  before  him,  shall,  before  proceeding  further,  en- 
courage a  settlement  by  mutual  agreement,  or  by  submission  of 
the  case  to  referees  agreed  on  by  the  parties,  a  majority  ot 
whom  shall  decide  it. 

11  —  Parties  should,  at  the  trial,  be  confined  as  closely  as 
may    be    to   the    averments   and    denials   of   the   statement   and 


COURT  REGULATIONS,  CHINA 


227 


answer,  which  shall  not  be  altered  after  filing,  except  by  leave 
granted  in  open  court. 

12  —  On  application  of  either  party  and  advance  of  the 
fees,  the  consul  shall  compel  the  attendance  of  any  witness 
within  his  jurisdiction  before  himself,  referees,  or  commis- 
sioners. 

13  —  Each  party  is  entitled  and  may  be  required  to  testify. 

14  —  Judgment  may  be  given  summarily  against  either  party 
failing  to  obey  any  order  or  decree  of  the  consul. 

15  _  For  sufficient  cause  and  on  sufficient  security  the  con- 
sul, on  filing  a  petition,  may  grant  a  process  of  attachment  of 
any  defendant's  property  to  a  sufficient  amount,  or  of  arrest  of 
any  defendant  not  a  married  woman,  nor  in  the  service  of  the 
United   States   under   commission   from   the   President. 

16 —  Defendant  may  at  any  time  have  the  attachment  dis- 
solved by  depositing  such  sums,  or  given  such  security  as  the 
consul  may  require. 

17  —  Perishable  property,  or  such  as  is  liable  to  serious 
depreciation  under  attachment,  may,  on  petition  of  either  party, 
be  sold  by  the  consul's  order,  and  its  proceeds  deposited  in  the 
consulate. 

18  —  Any  defendant  arrested  or  imprisoned  on  civil  petition 
shall  be  released  on  tender  of  a  sufficient  bond,  deposit  of  a 
sufficient  sum,  or  assignment  of  sufficient  property. 

19  —  Any  person  under  civil  arrest  or  imprisonment  may 
have  his  creditor  cited  before  the  consul  to  hear  a  disclosure  of 
the  prisoner's  affairs  under  oath,  and  to  question  thereon;  and 
if  the  consul  shall  be  satisfied  of  its  truth  and  thoroughness, 
and  of  the  honesty  of  the  debtor's  conduct  towards  the  creditor, 
he  shall  forever  discharge  him  from  arrest  upon  that  debt; 
provided  that  the  prisoner  shall  offer  to  transfer  and  secure  to 
his  creditor  the  property  disclosed,  or  sufficient  to  pay  the  debt 
at  the  consul's  valuation. 

20  —  The  creditor  must  advance  to  the  jailer  his  fees  and 
payment  for  his  prisoner's  board  until  the  ensuing  Monday, 
and  afterwards  weekly,  or  the  debtor  will  be  discharged  from 
imprisonment  and  future  arrest. 

21 —  On  the  second  day  after  judgment  (exclusive  of  Sun- 
day), execution  may  issue,  enforcing  the  same,  with  interest  at 
12  per  cent,  a  year  against  the  property  and  person  of  the  deb- 
tor, returnable  in  thirty  days,  and  renewable. 

22  —  Sufficient  property  to  satisfy  the  execution  and  all  ex- 
penses, may  be  seized  and  sold  at  public  auction  by  the  officer, 
after  due  notice. 

23  —  Property  attached  on  petition,  and  not  advertised  for 
sale  within  ten  days  after  final  judgment,  shall  be  returned 
to  the  defendant. 


Ameri- 
can   wit- 
nesses 
com- 
pelled to 
attend 

Parties 
are  wit- 
nesses 
Decrees 
to  be 
obeyed 
Attach- 
ment or 
arrest 


Disso- 
lution  of 
attach- 
ment 

Sale  of 
perish- 
able 
prop- 
erty 

Release 
of  debtor 


Debtor's 
disclos- 
ure 


Debtor's 
board 


Execu- 
tion 


Seizure 
and  sale 
of  prop- 
erty 


228 


APPENDIX  IV 


Final 
judgment 
for  de- 
fendant 


Offset 


Costs 


Trustee 
process 


Trustee's 
costs 


Demand 
on  trus- 
tee upon 
execu- 
tion 


Debt 

must  be 
at  least 
ten  dol- 
lars 

Replevin 


24  —  When  final  judgment  is  given  in  favor  of  defendant, 
his  person  and  property  are  at  once  freed  from  imprisonment 
or  attachment,  and  all  security  given  by  him  discharged.  And 
the  consul  may,  at  his  discretion,  award  him  compensation  for 
any  damage  necessarily  and  directly  sustained  by  reason  of 
such  attachment,  arrest  or  imprisonment. 

25  —  In  actions  of  contract,  defendant  may  offset  petition- 
er's claim  by  a  counter  claim,  filing  his  own  claim,  under  oath, 
with  his  answer.  Petitioner  shall  be  notified  to  file  his  answer 
seasonably,  on  oath,  and  the  two  claims  shall  then  be  tried 
together,  and  but  one  judgment  given  for  the  difference,  if  any 
be  proved  in  favor  of  either  party,  otherwise  for  defendant's 
costs. 

26  —  Except  as  hereinafter  provided,  the  party  finally  pre- 
vailing recovers  costs,  to  be  taxed  by  him  and  revised  by  the 
consul. 

27  —  In  contract,  the  consul  may  order  defendant's  property 
or  credits  in  a  third  party's  hands,  to  be  attached  on  the  peti- 
tion by  serving  him  with  due  notice  as  trustee,  provided  peti- 
tioner secures  trustee  his  costs  by  adequate  special  deposit. 

28  —  If  adjudged  trustee,  the  third  party  may  retain  his 
costs  from  the  amount  for  which  he  is  adjudged  trustee,  if  suf- 
ficient; otherwise  the  balance  of  trustee's  costs  must  be  paid 
out  of  petitioner's  special  deposit,  as  must  the  whole  of  his 
costs  if  not  adjudged  trustee. 

29  —  The  amount  for  which  a  trustee  is  charged  must  be 
inserted  in  the  execution,  and  demanded  of  him  by  the  officer 
within  ten  days  after  judgment,  or  all  claim  on  him  ceases. 
Process  against  property  or  person  of  the  trustee  may  issue 
ten  days  after  demand. 

30  —  If  petitioner  recovers  judgment  for  less  than  ten  dol- 
lars, or  if  less  than  ten  dollars  of  defendant's  property  or  credits 
Is  proved  in  the  third  party's  hands,  in  either  case  the  third 
party  must  be  discharged  with  costs  against  petitioner. 

31  —  Before  granting  a  writ  of  replevin,  the  consul  shall 
require  petitioner  to  file  a  suflBcient  bond,  with  two  responsible 
sureties,  for  double  the  value  of  the  property  to  be  replevied, 
one  an  American  citizen;  or  petitioner  may  deposit  the  required 
amount. 


II  — TENDER,  ETC. 


32  —  Before  a  creditor  files  his  petition  in  contract,  his  deb- 
tor may  make  an  absolute  and  unconditional  offer  of  the  amount 
he  considers  due,  by  tendering  the  money  in  the  sight  of  the 
creditor  or  his  legal  representative. 
Deposit  33  —  If  not  accepted,  the  debtor  shall,  at  his  own  risk  and 


COURT  REGULATIONS,  CHINA 


229 


paying   the   charges,   deposit   the   money   with   the   consul,   who 
shall  receipt  to  him  and  notify  the  creditor. 

34  —  It  shall  be  paid  to  the  creditor  at  any  time,  if  demand- 
ed, unless  previously  withdrawn  by  the  depositor. 

35  —  If  the  depositor  does  not  withdraw  his  deposit,  and, 
upon  trial,  is  not  adjudged  to  have  owed  the  petitioner  at  the 
time  of  the  tender  more  than  its  amount,  he  shall  recover  all  his 
costs. 

36  —  At  any  stage  of  a  suit  in  contract  or  wrong,  defendant 
may  file  an  offer  to  be  defaulted  for  a  specific  sum  and  the  costs 
up  to  that  time;  and  if  petitioner  chooses  to  proceed  to  trial,  and 
does  not  recover  more  than  the  sum  offered,  and  interest,  he 
shall  pay  all  defendant's  costs  arising  after  the  offer,  execution 
issuing  for  the  balance  only. 


Demand 
or  with- 
drawal- 

Costs 


Offer  to 
he  de- 
faulted 


III  —  REFERENCE 


37  —  When  parties  agree  to  a  reference  they  shall  im- 
mediately file  a  rule,  and  the  case  be  marked  "Referred";  a 
commission  shall  then  issue  to  the  referees,  with  a  copy  of  all 
papers  filed  in  the  case. 

38  —  The  referees  shall  report  their  award  to  the  consul, 
who  shall  accept  the  same,  and  give  judgment  and  issue  execu- 
tion thereon,  unless  satisfied  of  fraud,  perjury,  corruption,  or 
gross  error  in  the  proceedings. 

39  — •  In  cases  involving  more  that  five  hundred  dollars, 
if  his  acceptance  is  withheld,  the  consul  shall  at  once  transmit 
the  whole  case,  with  a  brief  statement  of  his  reasons,  and  the 
evidence  thereon,  to  the  minister,  who  shall  give  judgment  on 
the  award,  or  grant  a  new  trial  before  the  consul. 


Award 
and  ac- 
ceptance 


When 
trans- 
mitted  to 
minis- 
ter 


IV  —  APPEAL 


40  —  Appeals  must  be  claimed  before  three  o'clock  in  the 
afternoon  of  the  day  after  judgment  (excluding  Sunday) ;  but 
in  civil  cases,  only  upon  suflicient  security. 

41  —  Within  five  days  after  judgment,  the  appellant  must 
set  forth  his  reasons  by  petition  filed  with  the  consul,  which 
shall  be  transmitted  as  soon  as  may  be  to  the  minister,  with  a 
copy  of  docket  entries  and  of  all  papers  in  the  case. 


Must  be 
v.'ithin 
one   day 


To  be 
perfected 
within 
five  days 


V—  NEW  TRIAL 


42  —  On  proof  of  the  perjury  of  any  important  witness  of 
the  prevailing  party  upon  a  material  point,  affecting  the  decision 
of  a  suit,  the  consul  who  tried  it  may,  within  a  year  after  final 
judgment,  grant  a  new  trial  on  such  terms  as  he  may  deem  just. 


Because 
of  per- 
jury 


230 


APPENDIX  IV 


Gener- 
ally 


43  —  Within  one  year  after  final  judgment  in  any  suit  not 
involving  more  than  five  hundred  dollars,  the  consul  who  tried 
It,  or  his  successor,  may,  upon  sufficient  security,  grant  a  new 
trial  where  justice  manifestly  requires  it;  if  exceeding  $500, 
with  concurrence  of  the  minister. 


Slaves 
not  to 
be  held. 


Habeas 
corpus 


VI  — HABEAS  CORPUS 

44  _  No  consul  shall  recognize  the  claim  of  any  American 
citizen  arising  out  of  a  violation  of  the  provisions  of  the  act 
of  Congress  approved  February  19,  1862,  relating  to  the  "coolie 
trade"  so  called,  nor  any  claim  which  involves  the  holding  any 
person  in  slavery. 

45  —  Upon  application  of  any  person  in  writing  and  under 
oath,  representing  that  he  or  any  other  person  is  enslaved,  un- 
lawfully imprisoned,  or  deprived  of  his  liberty  by  any  American 
citizen  within  the  jurisdiction  of  a  consul,  such  consul  may  issue 
his  writ  of  habeas  corpus,  directing  such  citizen  to  bring  the  said 
person,  if  in  his  custody  or  under  his  control,  before  him;  and 
the  question  shall  be  determined  summarily,  subject  to  appeal. 


Attach- 
ment 


Husband 
to  ad- 
vance 
money 


Alimony 


Minor 
children 


Release 
of  both- 


Costs- 


Record 

and 

return 


VII  —  DIVORCE 

46  —  Libels  for  divorce  must  be  signed  and  sworn  to  before 
the  consul,  and  on  the  trial  each  party  may  testify. 

47  —  The  consul,  for  good  cause,  may  order  the  attachment 
of  libeller's  property  to  such  an  amount  and  on  such  terms  as 
he  may  think  proper. 

48  —  He  may  also,  at  his  discretion,  order  the  husband  to 
advance  to  his  wife,  or  pay  into  court,  a  reasonable  sum  to 
enable  her  to  prosecute  or  defend  the  libel,  with  a  reasonable 
monthly  allowance  for  her  support,  pending  the  proceedings. 

49  —  Alimony  may  be  awarded  or  denied  the  wife  on  her 
divorce  at  his  discretion. 

50  _  Custody  of  the  minor  children  may  be  decreed  to  such 
party  as  justice  and  the  children's  good  may  require. 

51  —  Divorce  releases  both  parties,  and  they  shall  not  be 
remarried  to  each  other. 

52  — ■  Costs  are  at  the  discretion  of  the  consul. 

VIII  —  MARRIAGE 

53  —  Each  consul  shall  record  all  marriages  solemnized  by 
him  or  in  his  official  presence. 

IX  — BIRTHS   AND   DEATHS 

54  — The  birth  and  death  of  every  American  citizen  within 
the  limits  of  his  jurisdiction  shall  likewise  be  recorded- 


COURT  REGULATIONS,  CHINA 


231 


X  —  BANKRUPTCY,  PARTNERSHIP,  PROBATE,  ETC. 

55  —  Until  promulgation  of  further  regulations,  consuls  will 
continue  to  exercise  their  former  lawful  jurisdiction  and  au- 
thority in  bankruptcy,  partnerships,  probate  of  wills,  administra- 
tion of  estates,  and  other  matters  of  equity,  admiralty,  ecclesi- 
astical and  common  law,  not  specially  provided  for  in  previous 
decrees,  according  to  such  reasonable  rules,  not  repugnant  to  the 
Constitution,  treaties,  and  laws  of  the  United  States,  as  they  may 
find  necessary  or  convenient  to  adopt. 

XI  —  SEAMEN 

56  —  In  proceedings  or  prosecutions  instituted  by  or  against 
American  seamen,  the  consul  may,  at  his  discretion,  suspend  any 
of  these  rules  in  favor  of  the  seamen  when,  in  his  opinion,  jus- 
tice, humanity,  and  public  policy  require  it. 


XII  — CRIMINAL   PROCEEDINGS 

57  —  Complaints  and  informations  against  American  citizens 
should  always  be  signed  and  sworn  to  before  the  consul  when 
the  complainant  or  informant  is  at  or  near  the  consul's  port. 

58  —  All  complaints  and  informations  not  so  signed  and 
sworn  to  by  a  citizen  of  the  United  States,  and  all  complaints 
and  informations  in  capital  cases,  must  be  authenticated  by  the 
consul's  certificate  of  his  knowledge  or  belief  of  the  substantial 
truth  of  enough  of  the  complaint  or  information  to  justify  the 
arrest  of  the  party  charged. 

59  —  No  citizen  shall  be  arraigned  for  trial  until  the  offense 
charged  is  distinctly  made  known  to  him  by  the  consul  in  re- 
spondent's own  language.  In  cases  of  magnitude,  and  in  all 
cases  when  demanded,  an  attested  copy  (or  translation)  of  the 
complaint,  information,  or  statement,  authenticated  by  the  con- 
sul, shall  be  furnished  him  in  his  own  language,  as  soon  as  may 
be,  after  his  arrest. 

60  —  The  personal  presence  of  the  accused  is  indispensable 
throughout  the  trial. 

61  —  He  shall  be  informed  of  his  right  to  testify,  and  cau- 
tioned that  if  he  chooses  of  offer  himself  as  a  witness,  he  must 
answer  all  questions  that  may  be  propounded  by  the  consul  or 
his  order,  like  any  other  witness. 

62  —  The  government  and  the  accused  are  equally  entitled 
to  compulsory  process  for  witnesses  within  their  jurisdiction; 
and  if  the  consul  believes  the  accused  to  be  unable  to  advance 
the  fees,  his  necessary  witnesses  shall  be  summoned  at  the  ex- 
pense of  the  United  States. 


How 
com- 
menced. 

How 
authen- 
ticated- 


Copy  of 
accusa- 
tion 


Presence 
of  ac- 
cused 
May  tes- 
tify 


Ameri- 
can  wit- 
nesses 
com- 
pelled to 
attend 


232 


APPENDIX  IV 


Fines  and 
costs. 


Capital 
cases 


After 
convic- 
tion 
Ameri- 
can ball 


Foreign 
bail 


Two 
sureties 

Surren- 
der 

Prose- 
cutor 
may  be 
required 
to  give 
security 


Honor- 
able 
acquit- 
tal 

Costs 


Minor 
offenses 


63  —  When  punishment  is  by  fine,  costs  may  be  included  or 
remitted  at  the  consul's  discretion.  An  alternative  sentence  of 
thirty  days'  imprisonment  shall  take  effect  on  non-payment  of 
any  part  of  the  fine  or  costs  adjudged  in  any  criminal  pro- 
ceedings. 

64  —  Any  prisoner,  before  conviction,  may  be  admitted  to 
bail  by  the  consul  who  tries  him,  except  in  capital  cases. 

65  —  No  prisoner,  charged  with  a  capital  offense,  shall  be 
admitted  to  bail  where  the  proof  is  evident,  or  the  presumption 
of  his  guilt  great. 

66  —  After  conviction  and  appeal,  the  prisoner  may  be  ad- 
mitted to  bail  only  by  the  minister. 

67  —  Any  citizen  of  the  United  States  offering  himself  as 
bail  shall  sign  and  swear,  before  the  consul,  to  a  schedule  of 
unencumbered  personal  property  of  a  value  of  at  least  double 
the  amount  of  the  required  bail. 

68  —  Any  other  proposed  bail  or  security  shall  sign  and 
swear  before  the  consul  to  a  similar  schedule  of  unencumbered 
personal  property  within  the  local  jurisdiction  of  the  consulate, 
or  he  may  be  required  to  deposit  the  amount  in  money  or  valu- 
ables with  the  consul. 

69  —  Unless  such  sufficient  citizen  becomes  bail,  or  such 
deposit  is  made,  at  least  two  sureties  shall  be  required. 

70  —  Any  American  bail  may  have  leave  of  the  consul  to 
surrender  his  principal  on  payment  of  all  costs  and  expenses. 

71  —  Any  complainant,  informant,  or  prosecutor,  may  be  re- 
quired to  give  security  for  all  costs  of  the  prosecution,  includ- 
ing those  of  the  accused;  and  every  complainant,  &c.,  not  a 
citizen  of  the  United  States,  shall  be  so  required,  unless  in  the 
consul's  opinion  justice  will  be  better  promoted  otherwise;  and 
when  such  security  is  refused  the  prosecution  shall  abate. 

72 — When  the  innocence  of  the  accused,  both  in  law  and 
in  intention,  is  manifest,  the  consul  shall  add  to  the  usual  judg- 
ment of  acquittal  the  word  "honorably". 

73  —  In  such  case  judgment  may  be  given  and  execution 
issued  summarily  against  any  informer,  complainant,  or  prose- 
cutor, for  the  whole  costs  of  the  trial,  including  those  of  the 
accused,  or  for  any  part  of  either  or  both,  if  the  proceeding 
appears  to  have  been  groundless  and  vexatious,  originating  in 
corrupt,  malicious,  or  vindictive  motives. 

74  —  Consuls  will  ordinarily  encourage  the  settlement  of  all 
prosecutions,  not  of  a  heinous  character,  by  the  parties  aggrieved 
or  concerned. 


XIII  — OATHS 

75  —  Oaths   shall   be   administered   in    some    language    that 
the  witness  imderstands. 


COURT  REGULATIONS,  CHINA 


233 


76  —  A  witness  not  a  Christian  shall  be  sworn  according  to 
his  religious  belief. 

77  —  An  avowed  atheist  shall  not  be  sworn,  but  may  affirm, 
under  the  pains  and  penalties  of  perjury;  the  credibility  of  his 
evidence  being  for  the  consideration  of  the  consul. 

78  —  A  Christian,  conscientiously  scrupulous  of  an  oath,  may 
affirm  under  the  pains  and  penalties  of  perjury. 


Not 
Chris- 
tians 
Atheist 


Affirma- 
tion 


XIV  — DOCKETS,    RECORDS,    ETC. 

79  —  Each  consul  shall  keep  a  i-egular  docket  or  calendar  of 
all  civil  actions  and  proceedings,  entering  each  case  separately, 
numbering  consecutively  to  the  end  of  his  term  of  office,  with  the 
date  of  filing,  the  names  of  the  parties  in  full,  their  nationality, 
the  nature  of  the  proceeding,  the  sum  or  thing  claimed,  with 
minutes  and  dates  of  all  orders,  decrees,  continuances,  appeals, 
and  proceedings,  until  final  judgment. 

go  —  He  shall  keep  another  regular  docket  for  all  criminal 
cases,  with   sufficient   similar   memoranda. 

81  —  All  original  papers  shall  be  filed  at  once  and  never  re- 
moved; no  person  but  an  officer  of  the  consulate  or  the  minister 
should  be  allowed  access  to  them.  All  papers  in  a  case  must 
be  kept  together  in  one  inclosure,  and  numbered  as  in  the 
docket  with  the  parties'  names,  the  nature  of  the  proceedings, 
the  year  of  filing  the  petition  and  of  final  judgment  conspicu- 
ously marked  on  the  inclosure,  and  each  year's  cases  kept  by 
themselves  in  their  order. 


Civil 
docket 


Crim- 
inal 

Filing 
papers 


XV  —  LIMITATION  OF  ACTIONS  AND  PROSECUTIONS 

82  —  Heinous  offenses,  not  capital,  must  be  prosecuted  with- 
in six  years;  minor  offenses  within  one. 

83  —  Civil  actions  based  on  written  promise,  contract,  or 
instrument  must  be  commenced  within  six  years  after  the 
cause  of  action  accrues;   others  within  two. 

84  —  In  prosecutions  for  heinous  offenses,  not  capital,  and 
in  civil  cases  involving  more  than  $500,  any  absence  of  respon- 
dent or  defendant  for  more  than  three  months  at  a  time  from 
China  shall  be  added  to  the  limitation;  and  in  civil  cases  involv- 
ing more  than  $100,  the  period  during  which  the  cause  of  action 
may  be  fraudulently  concealed  by  defendant  shall  likewise  be 
added. 


Crim- 
inal 


Civil 


Absence; 
fraudu- 
lent con- 
cealment 


XVI  — GENERAL  PROVISIONS 

85  —  All   trials  and  proceedings   in   the   United   States   con-    '^''J^J^' 
sular  courts  in  China  shall  be  open  and  public. 


234 


APPENDIX  IV 


Inter- 
preting 
and 
trans- 
lating 


Testi- 
mony 


Adjourn- 
ment 


Officer 


Copies 
on  ap- 
peal 


Copies 


Defini- 
tion of 
consul 


Asso- 
ciates 


Con- 
tempt 


Attor- 
ney 


Ac- 
counts 


86  —  Papers  and  testimony  in  a  foreign  language  shall  be 
translated  into  English  by  a  sworn  interpreter  appointed  by  the 
consul;  in  civil  cases  to  be  paid  by  petitioner.  Oaths  and  ques- 
tions shall  be  translated  by  the  interpreter  from  the  English 
for  any  witness  who  does  not  understand  English. 

87  —  Parties  may  be  required  to  file  their  petitions,  answers, 
complaints,  informations,  and  all  other  papers  addressed  to  the 
court,  in  English;  or  they  may  be  translated  by  the  interpreter 
at  the  consul's  discretion.  All  testimony  must  be  taken  in 
writing  in  open  court,  by  the  consul  or  his  order,  and  signed  by 
the  witness,  after  being  read  over  to  him  for  his  approval  and 
correction,  and  it  shall  form  part  of  the  papers  in  the  case. 

88  —  The  consul  may  adjourn  his  court  from  time  to  time 
and  place  to  place  within  his  jurisdiction,  always  commencing 
proceedings  and  giving  judgment  at  the  consulate. 

89  —  All  processes  not  served  by  the  consul  personally  must 
be  executed  by  an  oflficer  of  the  consulate,  who  shall  sign  his 
return,  specifying  the  time  and  mode  of  service,  and  annexing 
an  account  of  his  fees. 

90  —  On  appeal,  copies  of  all  the  papers  must  be  paid  for  in 
advance  by  the  appellant,  except  in  criminal  cases  where  re- 
spondent is  unable  to  pay. 

91  —  Any  person  interested  is  entitled  to  a  copy  of  any 
paper  on  file,  on  prepayment  of  the  fee. 

92  —  Reasonable  clearness,  precision,  and  certainty  should 
be  required  in  the  papers;  and  substantial  justice  and  all  prac- 
ticable dispatch  is  expected  in  the  decisions. 

93  —  The  word  "consul"  is  intended  to  include  the  consul- 
general,  and  any  vice-consul  or  deputy-consul  actually  exercising 
the  consular  power  at  any  consulate,  unless  the  sense  requires 
a  more  limited  construction. 

94  —  Each  associate  in  a  consular  trial  shall,  before  enter- 
ing  on  his  duties,  be  sworn  by  the  consul.  Before  taking  the 
oath,  he  may  be  challenged  by  either  party,  and  for  sufficient 
cause  excused  and  another  drawn. 

95  —  Consuls  will  always  preserve  order  in  court,  punishing 
summarily  any  contempt  committed  in  their  presence  or  any 
refusal  to  obey  their  lawful  summons  or  order,  by  imprison- 
ment not  exceeding  twenty-four  hours,  or  by  fine  not  exceeding 
$50  and  costs. 

96  —  Every  party  to  a  civil  or  criminal  proceeding  may  be 
heard  in  person,  or  by  attorney  of  his  choice,  or  by  both;  but 
the  presence  of  counsel  shall  be  imder  the  exclusive  control  and 
discretion  of  the  consul. 

97  —  The  accounts  of  the  consular  courts  shall  be  kept 
in  United  States  currency;  and  every  order  of  deposit,  decree  of 


COURT  REGULATIONS,  CHINA  235 

costs,  taxation  of  fees,  and,  generally,  every  paper  issuing  orig- 
inally from  the  court,  shall  be  expressed  in  dollars  and  cents, 
and  satisfied  in  United  States  metallic  currency,  or  its  equivalent. 

XVII  —  FEES 
[98-105,  Table  of  fees,  omitted] 

XVIII  —  PROVISO 

106  —  All  decrees  heretofore  issued  by  authority  of  the  com- 
missioners and  ministers  of  the  United  States  to  China,  which 
are  inconsistent  in  whole  or  in  part  with  the  provisions  of  this 
decree,  are  hereby  annulled,  and  those  portions  are  henceforth 
void  and  of  no  effect;  and  the  promulgation  of  these  rules  abro- 
gates no  authority  hitherto  lawfully  exercised  by  consuls  in 
China  not  inconsistent  herewith. 
[Forms  omitted] 

[Signed]     ANSON   BURLINGAME 

Peking,  April  23,  1864 


IV— 2— SAME,  SUMMONS  TO  ABSENTEES,  1881 

I  —  In  civil  proceedings  between  American  citizens  in  the 
consular  courts  in  China,  the  service  of  summons  upon  the  de- 
fendant, if  he  is  found  within  the  Empire  of  China,  shall  be 
personal;  that  is,  the  copy  of  the  complaint  and  summons  duly 
certified  by  a  marshal  of  any  consular  court  in  China  shall  be 
delivered  into  the  hands  of  the  person  to  be  served.  The  offi- 
cer so  serving  the  summons  shall  certify  the  same  to  the  consul, 
before  whom  the  suit  is  brought. 

II  —  When  the  defendant  has  removed  from  or  is  absent 
from  the  empire,  or  conceals  himself  therein  to  avoid  the  service 
of  summons  and  the  fact  appears  by  afiidavit  to  the  satisfaction 
of  the  consul,  and  it  also  appears  by  such  afiidavit  or  by  the 
verified  complaint  on  file  that  a  good  cause  of  action  exists 
against  the  defendant  or  that  he  is  a  necessary  party  to  the 
action,  such  consul  may  make  an  order  that  the  service  be  made 
by  publication  of  the  summons.  Such  order  shall  direct  the 
publication  to  be  made  in  a  newspaper  of  general  circulation 
(to  be  named)  for  such  length  of  time  as  may  be  reasonable  in 
not  less  than  six  issues  of  such  paper,  if  a  daily,  and  in  not 
less  than  four  issues,  if  a  weekly.  Such  publication  shall  be 
made  in  a  newspaper  published  nearest  to  the  consulate,  where 
the  suit  or  proceeding  is  pending,  at  least  five  months  before 


236  APPENDIX  IV 

the  time  fixed  for  the  trial  by  the  consul.  In  case  of  publica- 
tion, when  the  residence  of  a  non-resident  or  absent  defendant 
is  unknown,  the  consul  shall  direct  a  copy  of  the  complaint  and 
summons,  duly  certified,  and  addressed  to  the  person  to  be 
served  at  his  supposed  place  of  residence,  to  be  deposited  in 
the  post-office  by  the  marshal  of  said  court. 

[Signed]     JAMES  B.  ANGELL 
Peking,  May  26,  1881 


IV— 3— SAME,  AEEESTS  AND  EENDITIONS,  1897 

Whenever  a  criminal  action  is  pending  in  any  consular  dis- 
trict in  China  against  a  citizen  of  the  United  States  of  America 
who  may  be  found  in  any  other  consular  district  in  China,  it 
shall  be  lawful  for  the  consul  before  whom  the  action  is  pend- 
ing to  issue  his  warrant  for  the  arrest  of  such  citizen  wherever 
he  may  be  found  in  China. 

Such  warrant  shall  be  visaed  by  the  consul  in  whose  district 
the  accused  may  be  found,  and  thereupon  the  accused  shall 
be  arrested  by  the  United  States  marshal  of  the  district  in 
which  he  may  be  found  and  shall  be  transported  to  the  consular 
district  in  which  the  case  against  him  is  pending,  for  trial  be- 
fore the  consular  court  thereof. 

[Signed]     CHARLES    DENBY 

Peking,  September  15,  1897 


Y—1— CUSTOMS  EULES  OF  1868,  CHINA 


RULES  FOR  JOINT  INVESTIGATION  IN  CASES  OF  CONFIS- 
CATION  AND    FINE    BY    THE    CUSTOM    HOUSE 
AUTHORITIES 

Rule  I  —  It  shall  be  the  Rule  for  all  business  connected  with 
the  Custom  House  Department  to  be  in  the  first  instance  trans- 
acted between  the  Commissioner  of  Customs  and  the  Consul, 
personally  or  by  letter;  and  procedure  in  deciding  cases  shall  be 
taken  in  accordance  with  the  following  Regulations. 

Rule  II  —  Whenever  a  ship  or  goods  belonging  to  a  foreign 
merchant  is  seized  in  a  port  in  China  by  the  Custom  House 
oflBcers,  the  seizure  shall  be  reported  without  delay  to  the 
Kien-tuh,  or  Chinese  Superintendent  of  Customs.  If  he  con- 
siders the  seizure  justifiable,  he  will  depute  the  Swui-wu-sze, 
or  foreign  Commissioner  of  Customs,  to  give  notice  to  the 
parties  to  whom  the  ship  or  goods  are  declared  to  belong,  that 
they  have  been  seized  because  such  or  such  an  irregularity  has 
been  committed,  and  that  they  will  be  confiscated,  unless,  be- 
fore noon  on  a  certain  day,  being  the  sixth  day  from  the  delivery 
of  the  notice,  the  Custom  House  authorities  receive  from  the 
Consul  an  official  application  to  have  the  case  fully  investi- 
gated. The  merchant  to  whom  the  ship  or  goods  belong,  if 
prepared  to  maintain  that  the  alleged  irregularity  has  not  been 
committed,  is  free  to  appeal,  within  the  limited  time,  directly 
to  the  Commissioner,  who  is  to  inform  the  Superintendent. 
If  satisfied  with  his  explanations,  the  Superintendent  will  di- 
rect the  release  of  the  ship  or  goods;  otherwise,  if  the  merchant 
elect  not  to  appeal  to  the  Customs,  or  if,  after  receiving  his  ex' 
planations,  the  Superintendent  still  declines  to  release  the  ship 
or  goods,  he  may  appeal  to  his  Consul,  who  will  inform  the 
Superintendent  of  the  particulars  of  this  appeal,  and  request 
him  to  name  a  day  for  them  both  to  investigate  and  try  the  case 
publicly. 

Rule  III  —  The  Superintendent,  on  receipt  of  the  Consul's 
communication,  will  name  a  day  for  meeting  at  the  Custom 
House;  and  the  Consul  will  direct  the  merchant  to  appear  with 
his  witnesses  there  on  the  day  named,  and  will  himself  on  that 
day  proceed  to  the  Custom  House.  The  Superintendent  will 
invite  the  Consul  to  take  his  seat  with  him  on  the  bench;  the 
Commissioner  of  Customs  will  also  be  seated  to  assist  the  Su- 
perintendent. 


238  APPENDIX  V 

Proceedings  will  be  opened  by  the  Superintendent,  who  will 
call  on  the  Customs'  employes  who  seized  the  ship  or  goods  to 
state  the  circumstances  which  occasioned  the  seizure,  and  will 
question  them  as  to  their  evidence.  Whatever  the  merchant  may 
have  to  advance  in  contradiction  of  their  evidence  he  will  state 
to  the  Consul,  who  will  cross-examine  them  for  him.  Such  will 
be  the  proceedings  in  the  interest  of  truth  and  equity.  The 
Consul  and  Superintendent  may,  if  they  see  fit,  appoint  deputies 
to  meet  at  the  Custom  House  in  their  stead,  in  which  case  the 
order  of  proceedings  will  be  the  same  as  if  they  were  present 
in  person. 

Rule  IV  —  Notes  will  be  taken  of  the  statements  of  all 
parties  examined,  a  copy  of  which  will  be  signed  and  sealed 
by  the  Consul  and  Superintendent.  The  room  will  then  be 
cleared,  and  the  Superintendent  will  inform  the  Consul  of  the 
course  he  proposes  to  pursue.  If  he  proposes  to  confiscate  the 
vessel  or  goods,  and  the  Consul  dissents,  the  merchant  may 
appeal;  and  the  Consul,  having  given  notice  of  the  appeal  to 
the  Superintendent,  they  will  forward  certified  copies  of  the 
above  notes  to  Peking, — the  former  to  his  Minister,  and  the  latter 
to  the  Foreign  Office  for  the  decision. 

If  the  Consul  agrees  with  the  Superintendent  that  the  ship 
or  goods  ought  to  be  confiscated,  the  merchant  will  not  have 
the  right  of  appeal;  and  in  no  case  will  the  release  of  ship  or 
goods  entitle  him  to  claim  indemnity  for  their  seizure,  whether 
they  be  released  after  the  investigation  at  the  Custom  House, 
or  after  the  appeal  to  the  high  authorities  of  both  nations  at 
Peking. 

Rule  V  —  The  case  having  been  referred  to  superior  author- 
ity, the  merchant  interested  shall  be  at  liberty  to  give  a  bond, 
binding  himself  to  pay  the  full  value  of  the  ship  or  goods,  at- 
tached, should  the  ultimate  decision  be  against  him;  which  bond, 
being  sealed  with  the  Consular  seal,  and  deposited  at  the  Cus- 
tom House,  the  Superintendent  will  restore  to  the  merchant  the 
ship  or  goods  attached;  and  when  the  superior  authorities  shall 
have  decided  whether  so  much  money  is  to  be  paid,  or  the 
whole  of  the  property  seized  be  confiscated,  the  merchant  will 
be  called  on  to  pay  accordingly.  If  he  decline  to  give  the  neces- 
sary security,  the  ship  or  merchandise  attached  will  be  detained. 
But  whether  the  decision  of  the  superior  authorities  be  favor- 
able or  not,  the  appellant  will  not  be  allowed  to  claim  indemnity. 

Rule  VI  —  When  the  act  of  which  a  merchant  at  any  port 
is  accused  is  not  one  involving  the  confiscation  of  ship  or  cargo, 
but  is  one  which,  by  Treaty  or  Regulation,  is  punishable  by  fine, 
the  Commissioner  will  report  the  case  to  the  Superintendent, 
and    at   the    same   time   cause    a    plaint   to   be   entered   in   the 


CUSTOMS  RULES,  CHINA  239 

Consular  Court.  The  Consul  will  fix  the  day  of  the  trial,  and 
inform  the  Commissioner  that  he  may  then  appear  with  the 
evidence  and  the  witnesses  in  the  case.  And  the  Commissioner, 
either  personally  or  by  deputy,  shall  take  his  seat  on  the  bench, 
and  conduct  the  case  on  behalf  of  the  prosecution.  When  the 
Treaty  or  Regulations  affix  a  specific  fine  for  the  offence,  the 
Consul  shall  on  conviction  give  judgment  for  that  amount,  the 
power  of  mitigating  the  sentence  resting  with  the  Superin- 
tendent and  Commissioner.  If  the  defendant  is  acquitted,  and 
the  Commissioner  does  not  demur  to  the  decision,  the  ship  or 
goods,  if  any  be  under  seizure,  shall  at  once  be  released,  and  the 
circumstances  of  the  case  be  communicated  to  the  Superinten- 
dent. The  merchant  shall  not  be  put  to  an  expense  by  delay,  but 
he  shall  have  no  claim  for  compensation  on  account  of  hindrance 
in  his  business,  for  loss  of  interest,  or  for  demurrage.  If  a  dif- 
ference of  opinion  exists  between  the  Commissioner  and  Consul, 
notice  to  that  effect  shall  be  given  to  the  Superintendent,  and 
copies  of  the  whole  proceedings  forwarded  to  Peking  for  the 
consideration  of  their  respective  high  authorities.  Pending 
their  decision,  the  owner  of  the  property  must  file  a  bond  in 
the  Consular  Court  to  the  full  value  of  the  proposed  fine,  which 
will  be  sent  to  the  Custom  House  authorities  by  the  Consul,  and 
the  goods   or  ship  will  be  released. 

Rule  VII  —  If  the  Custom  House  authorities  and  Consul 
cannot  agree  as  to  whether  certain  duties  are  leviable  or  not, 
action  must  be  taken  as  Rule  V  directs,  and  the  merchant  must 
sign  a  bond  for  the  value  of  the  duties  in  question.  The  Con- 
sul will  affix  his  seal  to  this  document,  and  send  it  to  the  Custom 
House  authorities,  when  the  Superintendent  will  release  the 
goods  without  receiving  the  duty;  and  these  two  functionaries 
will  respectively  send  statements  of  the  case  to  Peking, — one  to 
his  Minister,  the  other  to  the  Foi-eign  Office. 

If  it  shall  be  decided  there  that  no  duty  shall  be  levied,  the 
Custom  House  authorities  will  return  the  merchant's  bond  to 
the  Consul  to  be  cancelled;  but  if  it  be  decided  that  a  certain 
amount  of  duty  is  leviable,  the  Consul  shall  require  the  mer- 
chant to  pay  it  in  at  the  Custom  House. 

Rule  VIII  —  If  the  Consul  and  the  Custom  House  authorities 
cannot  agree  as  to  whether  confiscation  of  a  ship,  or  a  cargo, 
or  both  of  them  together,  being  the  property  of  a  foreign  mer- 
chant, shall  take  place,  the  case  must  be  referred  to  Peking  for 
the  decision  of  the  Foreign  Office,  and  the  Minister  of  his  nation. 
Pending  their  decision,  the  merchant  must,  in  accordance  with 
Rule  V,  sign  a  bond  for  the  amount,  to  which  the  Consul  will 
affix  his  seal,  and  send  it  for  deposit  at  the  Custom  House. 

As  difference  of  opinion  as  to  the  value   (of  ship  or  goods) 


240  APPENDIX  V 

may  arise,  the  valuation  of  the  merchant  will  be  decisive;  and 
the  Custom  House  authorities  may,  if  they  see  fit,  take  over 
either  at  the  price  aforesaid. 

If  after  such  purchase  it  be  decided  that  the  property  seized 
ought  to  be  confiscated,  the  merchant  must  redeem  his  bond 
by  paying  in  at  the  Custom  House  the  original  amount  of  the 
purchase-money.  If  the  decision  be  against  confiscation,  the 
bond  will  be  returned  to  the  Consul  for  transmission  to  the 
merchant,  and  the  case  then  be  closed.  The  sum  paid  to  the 
Custom  House  authorities  for  ship  or  goods  being  regarded  as 
their  proper  price,  it  will  not  be  in  the  merchant's  power  by 
a  tender  of  the  purchase  money,  to  recover  them. 


Y_2_CUST0MS  EULE  I,  AMEEICAX- CHINESE 
TEEATY,  1903 

TREATY    OF    OCTOBER   8,    1903,    ANNEX   III,    PORTION    OF 

RULE  I 

.  .  .  If  the  goods  have  not  been  sold  before  presentation 
to  the  Customs  of  the  Application  to  pay  Duty,  and  should  a  dis- 
pute arise  between  Customs  and  importer  regarding  the  value  or 
classification  of  goods,  the  case  will  be  referred  to  a  Board  of 
Arbitration  composed  as  follows: 

An  oflBicial  of  the  Customs;  a  merchant  selected  by  the  Con- 
sul of  the  importer;  and  a  merchant  differing  in  nationality 
from  the  importer,  selected  by  the  Senior  Consul. 

Questions  regarding  procedure,  etc.,  which  may  arise  during 
the  sittings  of  the  Board  shall  be  decided  by  the  majority.  The 
final  finding  of  the  majority  of  the  Board,  which  must  be  an- 
nounced within  fifteen  days  of  the  reference  (not  including  holi- 
days), will  be  binding  upon  both  parties.  Each  of  the  two  mer- 
chants on  the  Board  will  be  entitled  to  a  fee  of  Ten  Haikwan 
Taels.  Should  the  Board  sustain  the  Customs  valuation,  or, 
in  the  event  of  not  sustaining  that  valuation,  should  it  decide 
that  the  goods  have  been  undervalued  by  the  importer  to  the 
extent  of  not  less  than  7i/^  per  cent.,  the  importer  will  pay  the 
fees;  if  otherwise,  the  fees  will  be  paid  by  the  Customs.  Should 
the  Board  decide  that  the  correct  value  of  the  goods  is  20  per 
cent,  (or  more)  higher  than  that  upon  which  the  importer  orig- 
inally claimed  to  pay  Duty,  the  Customs  authorities  may  retain 
possession  of  the  goods  until  full  Duty  has  been  paid  and  may 
levy  an  additional  Duty  equal  to  four  times  the  Duty  sought  to 
be  evaded. 

In  all  cases  invoices,  when  available,  must  be  produced  if 
required  by  the  Customs. 


YI— THE  MUNICIPAL   GOVEENMENT 
OF  SHANGHAI^ 

Chinese  residents  in  the  Foreign  Settlements  are  amenable 
to  their  own  laws,  administered  by  a  so-called  Mixed  Court, 
which  was  established  at  the  instigation  of  Sir  Harry  Parkes  in 
1864,  and  originally  sat  at  the  British  Consulate.  It  is  presided 
over  by  an  official  of  the  rank  of  Tung-chi,  or  sub-prefect.  The 
cases  are  watched  by  foreign  assessors  from  the  principal  Con- 
sulates. The  working  of  the  Court,  especially  in  regard  to  civil 
suits,  is  far  from  satisfactory,  as  the  judge  has  not  sufficient 
power  to  enforce  his  decisions.  The  matter  has  for  some  years 
been  supposed  to  be  engaging  the  attention  of  the  authorities 
at  Peking.  For  the  French  Concession  there  is  a  separate  Mixed 
Court,  which  sits  at  the  French  Consulate.  There  is  a  Court 
of  Consuls  which  was  established  in  1870,  the  judges  of 
which  are  elected  by  the  Consuls  annually,  its  purpose  being  to 
enable  the  Municipal  Council  to  be  sued. 

In  local  affairs  the  residents  govern  themselves  by  means  of 
the  Municipal  Council,  under  the  authority  of  the  "Land  Regula- 
tions." These  were  originally  drawn  up  by  H.  B.  M.  Consul  in 
1845,  but  have  since  undergone  various  amendments.  In  1854 
the  first  general  Land  Regulations — the  city  charter,  as  they  may 
be  called — were  arranged  between  the  British  Consul,  Captain 
Balfour,  and  the  local  authorities,  by  which  persons  of  all  na- 
tionalities were  allowed  to  rent  land  within  the  defined  limits, 
and  in  1863  the  so-called  "American  Settlement"  was  amalga- 
mated with  the  British  into  one  Municipality.  The  "Committee 
of  Roads  and  Jetties,"  originally  consisting  of  "three  upright 
British  Merchants,"  appointed  by  the  British  Consul,  became  in 
1855  the  "Municipal  Council,"  elected  by  the  renters  of  land, 
and  when  the  revised  Land  Regulations  came  into  force  in  1870, 
the  "Council  for  the  Foreign  Community  of  Shanghai  North  of 
the  Yang-king-pang,"  elected  in  January  of  each  year  by  all 
householders  who  pay  rates  on  an  assessed  rental  of  five  hundred 
taels  and  over.  The  Council  now  consists  of  nine  members  of 
various  nationalities,  who  elect  their  own  chairman   and   vice- 


^  Extract  from  European  Settlements  in  the  Far  East,  by  D.  W, 
Smith,  London,  1900,  p.  99-102.  This  excellent  brief  description  by  Mr. 
Smith  is  printed  in  place  of  extracts  from  the  "Land  Regulations," 
which,  in  their  revised  form,  are  said  to  be  now  available  in  this  coun- 
try only  in  the  Chinese  language  in  the  archives  of  the  Imperial 
Chinese  Legation  at  Washington. 


242  APPENDIX  VI 

chairman,  and  who  give  their  services  free.  The  great  increase 
of  municipal  business,  however,  is  proving  so  much  of  a  tax 
on  the  time  of  the  councillors,  the  chairman  especially,  that  some 
new  arrangement  is  necessary.  The  Secretariat  was  in  1897 
strengthened,  and  its  efficiency  increased,  but  no  move  in  the 
direction  of  a  change  in  the  Council's  constitution  has  yet  been 
made.  A  committee  of  residents  was  appointed  in  November, 
1879,  to  revise  the  Land  Regulations,  and  the  work  was  con- 
sidered and  passed  by  the  ratepayers  in  May,  1881,  but  the  "co- 
operative policy,"  under  which  a  voice  is  given  to  small  Powers 
having  practically  no  interests  in  China,  equal  to  that  given  to 
Great  Britain,  caused  a  delay  of  seventeen  years.  The  Regula- 
tions were  again  revised  and  passed  by  the  ratepayers  in  March, 
1898,  and  in  November  the  Council  received  a  formal  notifica- 
tion that  the  additions  and  alterations  and  by-laws  had  received 
the  approval  of  the  Diplomatic  Body  of  Peking,  and  they  have 
the  force  of  law  in  the  Anglo-American  Settlement.  They  give 
the  Council  the  power  which  it  had  for  nearly  twenty 
years  been  trying  to  get  to  compulsorily  acquire  land  for  new 
roads,  the  extension  and  widening  of  existing  roads,  the  ex- 
tension of  lands  already  occupied  by  public  works  and  for  pur- 
poses of  sanitation,  and  to  introduce  building  by-laws.  The 
rights  of  the  foreign  renters  and  native  owners  concerned  are 
most  carefully  guarded,  for  which  purpose  a  board  of  three  Land 
Commissioners  is  to  be  constituted,  one  to  be  appointed  by  the 
Council,  one  by  the  registered  owners  of  land  in  the  Settlement, 
and  one  by  resolution  of  a  meeting  of  ratepayers.  At  the  time 
of  the  Taiping  rebellion  it  was  proposed  by  the  Defence  Com- 
mittee, with  the  almost  unanimous  consent  of  the  landrenters 
and  residents,  to  make  the  Settlements  and  City  with  the  dis- 
trict around  a  free  city,  under  the  protection  of  the  Treaty 
Powers.  Had  this  proposal,  which  was  thoroughly  justifiable 
owing  to  the  Imperial  Government  having  lost  all  power  in  the 
provinces,  been  carried  out,  Shanghai  would  have  become  the 
chief  city  in  China,  and  it  is  safe  to  say  would  have  acted  as  a 
leaven,  to  the  ultimate  immense  benefit  of  the  whole  Empire.  A 
separate  Council  for  the  French  Concession  was  appointed  in 
1862  and  now  works  under  the  "Reglement  d'  Organisation  Muni- 
cipale  de  la  Concession  Frangaise,"  passed  in  1868.  It  consists 
of  four  French  and  four  foreign  members,  elected  for  two  years, 
half  of  whom  retire  annually.  Their  resolutions  are  inoperative 
until  sanctioned  by  the  Consul-General.  The  members  are  elected 
by  all  owners  of  land  on  the  Concession,  or  occupants  paying 
a  rental  of  a  thousand  francs  per  annum,  or  residents  with  an 
annual  income  of  four  thousand  francs.  This,  it  will  be  noticed, 
approaches  much  more  nearly  to  "universal  suffrage"  than  the 


MUNICIPALITY   OF   SHANGHAI  243 

franchise  of  the  other  Settlements,  which,  however,  it  is  the  in- 
tention to  considerably  reduce  under  the  new  Regulations.  The 
qualification  for  councillors  north  of  the  Yang-king-pang  is  the 
payment  of  rates  to  the  amount  of  fifty  taels  annually,  or  being 
a  householder  paying  rates  on  an  assessed  rental  of  twelve 
hundred  taels.  For  the  French  Concession  the  requirement  is 
a  monetary  one  of  about  the  same  amount.  Several  efforts  have 
been  made  to  amalgamate  the  French  with  the  other  Settle- 
ments, but  hitherto  without  success.  A  revision  of  the  R6gle- 
ments  for  the  French  Concession  has  for  some  time  been  under 
consideration  Meetings  of  ratepayers  are  held  in  February  or 
March  of  each  year,  at  which  the  budgets  are  voted  and  the  new 
Councils  instructed  as  to  the  policy  they  are  to  pursue.  No  im- 
portant measure  is  undertaken  without  being  referred  to  a 
special  meeting  of  ratepayers.  The  Council  divides  itself  into 
Defence,  Finance,  Watch,  and  Works  Committee.  This  cosmo- 
politan system  of  government  has  for  many  years  worked  so 
well  and  so  cheaply  that  Shanghai  has  fairly  earned  for  itself 
the  name  of  "The  Model  Settlement." 


VII— 1— RULES  OF  PROCEDURE  FOR  THE  COURT 
OF  CONSULS,  SHANGHAI 

Approved  by  the  Consular  Body,  July  10,  1882 

Rule  1  —  Every  petition  and  other  pleading  filed  in  the  Court 
and  all  notices  and  other  documents  issuing  from  the  Court  shall 
be  entitled  "  In  the  Court  of  Consuls. " 

Rule  2  —  The  Court  will  appoint  a  Secretary  whose  name 
and  address  will  be  made  public  and  who  shall  hold  the  olfice 
until  the  Court  otherwise  directs.  The  Secretary  shall  have 
charge  of  all  records  and,  under  the  direction  of  the  Court,  issue 
and  serve  or  cause  to  be  served  all  notices  and  other  documents. 
He  shall  also  be  the  medium  of  all  correspondence. 

Rule  3  —  Suits  shall  be  commenced  and  proceeded  with  in 
person  or  by  attorney,  and  suitors  may  be  heard  with  or  without 
counsel. 

Rule  4  —  The  language  of  the  Court  will  be  English. 

Rule  5  —  All  proceedings  shall  be  commenced  by  a  petition 
to  the  Court  to  be  filed  in  quadruplicate  and  to  state  all  facts 
material  to  the  issue  in  distinct  paragraphs. 

Rule  6  —  The  petition  will  be  served  upon  the  defendant 
with  notices  to  file  an  answer  in  quadruplicate  within  fourteen 
days  from  the  date  of  service.  A  copy  of  the  answer  will  be 
served  on  the  plaintiff  for  his  counsel  under  the  direction  of  the 
Court. 

Rule  7  —  Amendments  and  other  proper  pleadings  will  be  ad- 
mitted upon  such  terms  as  the  Court  may  impose,  and  such 
interim  order  may  be  made  prior  to  the  hearing  of  the  cause 
as  the  Court  may  consider  necessary. 

Rule  8  —  When  it  appears  to  the  Court  that  a  cause  is  ready 
to  be  heard  such  cause  will  be  set  down  for  hearing,  and  notice 
of  the  date  and  place  of  hearing  will  be  given  to  the  parties. 

Rule  9  —  Sittings  of  the  Court  will  be  public  and  its  pro- 
ceedings recorded  by  the  Secretary. 

Rule  10  —  The  onus  of  producing  witnesses  shall  be  with  the 
parties,  but  the  Court  will,  as  far  as  practicable,  aid  in  procuring 
the  attendance  of  witnesses.  Evidence  will  be  taken  on  oath  or 
otherwise  as  the  witness  may  consider  binding.  The  exami- 
nation of  witnesses  will  be  conducted  as  the  Court  may  direct. 

Rule  11  —  A  failure  to  respond  to  any  order  or  notice  issued 
by  the  Court  will  entitle  the  adverse  party  to  judgment  by  de- 
fault, and  the  Court  shall  be  empowered  to  give  judgment  accord- 
ingly. 

Rule  12  —  In    any   case   upon   application   within   sixty   days 


MIXED  COURT  AT  SHANGHAI  245 

after  judgment  the  Court  may  order  re-hearing  upon  such  terms 
as  seem  just. 

Rule  13  —  Special  cases  where  the  facts  are  admitted  may  be 
submitted  in  writing  to  the  Court  for  decision  without  appear- 
ance of  the  parties. 

Rule  14— A  minute  of  all  orders  shall  be  drawn  up  and  shall 
be  signed  by  the  Consuls  forming  the  Court,  or  a  majority  of 
them,  and  all  orders  shall  be  expressed  to  be  made  "  By  the 
Court "  and  shall  be  signed  by  the  Secretary. 

Rule  15  —  Judgments  will  be  given  in  writing  by  the  Judges 
of  the  Court,  and  either  be  read  in  Court  after  notice  or  served 
upon   the   parties. 

Rule  16  — The  fee  shall  be  for  hearing  $10— for  each  notice 
issued  and  served  $3— and  such  fees  for  recording  the  proceed- 
ings shall  be  allowed  as  the  Court  may  direct.  A  deposit  in  such 
sum  as  the  Court  may  think  sufficient  to  secure  payment  of  fees 
will  be  required  of  each  petitioner.  The  costs,  including  those  of 
counsel,  in  the  discretion  of  the  Court,  shall  be  paid  as  the  Court 
directs. 

Rule  17  —  All  fees  shall  be  at  the  disposal  of  the  Court  for 
the  remuneration  of  the  Secretary. 

VII— 2— EULES   OF   1869,    MIXED   COURT 

AT  SH a:n^ghai  ' 

1  — An  Official  having  the  rank  of  Sub-Prefect  will  be  de- 
puted to  reside  within  the  foreign  settlement.  He  will  have  a 
jurisdiction  in  commercial  suits  and  in  civil  and  criminal  cases, 
generally,  within  the  foreign  settlements.  He  will  have  an 
official  residence,  and  will  be  furnished  with  the  cangue,  the 
bamboo,  and  the  minor  means  of  punishment.  He  will  provide 
food  and  lodging  [for  prisoners]. 

He  will  decide  all  civil  and  commercial  suits  between 
Chinese  resident  within  the  settlements,  and  also  between 
Chinese  and  foreign  residents,  in  cases  where  Chinese  are 
defendants,  by  Chinese  law.  He  will  be  authorized  to  examine 
Chinese  judicially,  to  detain  them  in  custody,  and  to  punish 
them  by  putting  them  in  the  cangue,  by  flogging  and  by  other 
minor  punishments. 

2  —  Where  a  Foreigner  is  concerned  in  a  cause  to  be  tried, 
a  Consul  or  his  Deputy  shall  sit  with  the  Sub-Prefect  at  the  trial; 
but  where  Chinese  only  are  concerned  the  Sub-Prefect  shall  ad- 
judicate independently — the  Consuls  shall  not  interfere. 

»  These  rules  were  published  at  Shanghai,  April  20,  1869,  by  the  British 
consul  acting  under  instructions  from  the  British  minister  at  Peking. 


246  APPENDIX  VII 

3  —  Where  a  defendant  is  a  native  in  foreign  employ,  the 
Sub-Prefect  will  first  communicate  particulars  to  the  Consul  [of 
the  nationality  concerned],  who  will  be  bound  to  place  the 
parties  before  the  Court  without  attempting  to  screen  or  con- 
ceal them.  A  Consul  or  his  Deputy  may  attend  the  hearing, 
but  he  shall  not  interfere  if  no  foreign  interest  is  involved.  The 
servants  of  non-trading  Consuls  shall  not  be  arrested  unless 
with  the  sanction  of  their  masters. 

4  —  In  cases  where  Chinese  subjects  are  charged  with  grave 
offences  punishable  by  death  and  the  various  degrees  of  banish- 
ment, where,  by  Chinese  law,  a  local  officer  with  an  independent 
seal  would  send  up  the  case  for  revision  by  the  Provincial  Judge, 
who  would  submit  it  to  the  high  authorities  to  be  by  them  re- 
ferred to  His  Majesty  or  the  Board  of  Punishment, — it  will  still 
be  for  the  District  Magistrate  of  Shanghai  to  take  action. 

Inquests,  when  needed,  are  to  be  held  by  the  District  Magis- 
trate of  Shanghai,  independently  of  the  Sub-Prefect. 

5  —  A  Chinese  criminal  escaping  to  the  foreign  settlements 
can  be  summarily  arrested  by  the  Sub-Prefect  without  warrant 
from  the  District  Magistrate  or  aid  from  the  Municipal  police. 

6  —  Suits  between  natives  and  foreigners  shall  be  decided 
equitably  and  impartially,  and  in  accordance  with  the  Treaties. 
The  Treaty  provision  is  to  be  followed  in  cases  where  the  for- 
eigner has  a  Consul.  When  the  foreigner  has  no  Consul,  the 
Sub-Prefect  sitting  with  a  foreign  [Consular]  Assessor  shall  try 
the  case,  submitting  the  decision  for  the  consideration  of  the 
Taotai.  Should  either  party  to  a  case  be  dissatisfied  with  the 
Sub-Prefect's  decision,  application  for  a  new  trial  can  be  made 
to  the  Taotai  or  to  the  proper  Consul. 

7  —  Foreigners,  who  may  be  charged  with  any  offence,  if 
represented  by  Consul  on  the  spot,  shall  be  dealt  with  by  them 
as  the  Treaties  provide.  Unrepresented  foreign  offenders  will 
be  tried  and  sentenced  by  the  Sub-Prefect,  the  finding  being 
submitted  for  the  Taotai's  approval,  who  will  consult  with  some 
Treaty  Power  Consul  on  the  subject.  Where  the  offenders  are 
Chinese,  the  Sub-Prefect  will  inflict  the  proper  legal  punishment. 

8  —  The  necessary  staff  of  translators,  linguists,  writers  and 
servants,  will  be  engaged  by  the  Sub-Prefect,  as  also  a  foreigner 
or  two  for  general  purposes,  by  whom  also,  foreign  offenders 
having  no  Consul  will  be  brought  to  trial  or  kept  in  custody 
when  necessary.  All  expenses  are  to  be  drawn  from  the  Taotai 
monthly.  Acts  of  extortion  or  annoyance  on  the  part  of  any  of 
the  employers  shall  be  severely  punished. 

9  —  The  Sub-Prefect  shall  keep  a  daily  certified  record  of 
arrests  made  and  cases  tried,  giving  the  names  of  the  parties 
arrested  and  recording  the  grounds  of  decision  in  each  case. 
This  shall  be  open  to  the  inspection  of  the  superior  authorities. 


MIXED  COURT  AT  SHANGHAI  247 

Should  the  Sub-Prefect  be  inefficient  or  notorious  he  will  be 
denounced  and  removed  from  office,  another  being  apopinted  in 
his  place. 

10  — When  the  Sub-Prefect  has  tried  a  case,  should  it  be 
ascertained  that  plaintiff's  charge  was  false  or  exaggerated,  said 
plaintiff,  whether  native  or  foreigner,  shall  on  conviction  be 
mulcted  by  the  Sub-Prefect  in  accordance  with  Rules  which  will 
be  jointly  drawn  up  by  the  Sub-Prefect  and  Consuls,  and  sub- 
mitted for  the  Taotai's  approval,  and  in  the  interests  of  justice, 
native  and  foreigner,  must  in  this  respect  be  treated  with  perfect 
impartiality. 


VII— 3— SAME,  AMENDMENTS  PEOPOSED  IN  1906 ' 

1  —  The  International  Mixed  Court  of  Shanghai  should  al- 
ways keep  a  charge  book  for  entering  all  particulars  of  civil 
and  other  cases  which  may  be  brought  up  for  hearing  before 
foreign  assessors  and  Chinese  magistrates.  Persons  who  are 
interested  in  cases  will  be  permitted  to  inspect  the  book  at  all 
times. 

2  —  The  public  are  allowed  to  hear  all  lawsuits  which  may 
be  heard  in  the  International  Mixed  Court,  with  the  exception 
of  those  cases  which  have  been  appointed  by  the  foreign  as- 
essors  and  Chinese  magistrates  for  private  hearing. 

3  —  The  rank  of  the  Chinese  magistrate  in  the  International 
Mixed  Court  is  to  be  that  of  a  substantive  sub-prefect,  who  shall 
have  power  to  hear  and  sentence  all  descriptions  of  Chinese  of- 
fenders and  others  in  the  foreign  Settlements  north  of  the  Yang- 


1  "The  Ministers  of  Great  Britain,  Germany,  the  United  States, 
Austria-Hungary,  Russia,  Belgium,  Italy,  Spain,  Portugal,  and  Japan 
in  Peking  have  communicated  with  the  Waiwupu  with  reference  to 
the  rectification  of  the  existing  regulations  of  the  International 
Mixed  Court  north  of  the  Yang-king-pang  in  Shanghai,  stating  that, 
owing  to  the  extension  of  the  International  Settlements  in  1898,  the 
number  of  persons  under  the  jurisdiction  of  the  Mixed  Court  north 
of  the  Yang-king-pang  has  since  been  greatly  increased.  As  the 
existing  regulations  of  the  Mixed  Court  were  drawn  up  so  long  ago 
as  1868,  and  on  account  of  the  growth  of  the  Settlements,  they  re- 
quire immediate  rectification.  Accordingly  the  following  twelve 
new  regulations  have  been  drafted  by  the  Consuls-General  in  Shang- 
hai for  the  information  and  sanction  of  the  foreign  Ministers  and 
the  Peking  Government,  and  a  copy  has  been  sent  for  perusal  to 
his  Highness  Prince  Ching.  The  new  regulations  are  to  be  enforced 
as  soon  as  they  have  been  recognized  by  the  Chinese  Government. 

The  Customs  Taotai  and  the  Mixed  Court  magistrate  In  Shanghai 
have  been  urged  by  the  Waiwupu  carefully  to  consider  the  new 
regulations  and  give  their  respective  opinions   on   them,   so   that  the 


248  APPENDIX  VII 

king-pang.  The  magistrate  is  to  be  assisted  by  one  or  two  ex- 
pectant sub-prefects,  both  of  whom  are  to  be  placed  imder  the 
control  of  the  Customs  Taotai  of  Shanghai. 

4  —  With  the  exception  of  purely  Chinese  cases,  all  other 
charges  are  to  be  heard  by  foreign  assessors  and  Chinese  mag- 
istrates. The  former  are  to  be  appointed  by  the  Consuls-Gen- 
eral of  the  Powers. 

5  —  The  Customs  Taotai  and  the  Consuls-General  should  be 
appealed  to  in  case  any  difference  of  opinion  or  discord  exist 
between  the  assessors  and  the  magistrates  concerning  the  de- 
cision of  cases. 

6  —  The  cells  or  gaols  in  the  Mixed  Court  are  to  be  con- 
trolled in  accordance  with  the  sanitary  regulations  of  the  Inter- 
national Municipal  Council  and  to  be  inspected  by  the  Health 
Officer  of  the  Council  from  time  to  time  for  the  preservation  of 
health  among  prisoners. 

7  —  The  warrants  issued  by  the  Mixed  Court  for  the  appre- 
hension of  Chinese  residing  in  the  International  Settlements  of 
Shanghai  must  always  be  signed  and  sealed  by  the  senior  Con- 
sul-General,  and  must  also  be  properly  signed  and  sealed  by  the 
Consul-General  or  Consul  of  the  country  to  which  the  employers 
of  the  defaulting  Chinese  belong  if  they  are  employed  by  for- 
eigners or  foreign  firms. 

8  —  Both  plaintiffs  and  defendants  are  to  be  allowed  to  en- 
gage the  services  of  foreign  solicitors  in  cases  which  require  the 
presence  of  foreign  assessors  in  the  Court.  No  foreign  solicitors 
will  be  permitted  to  practise  in  the  Court  unless  they  have 
been  registered  and  sanctioned  at  their  respective  consulates. 

9  —  The  assessors  and  magistrates  shall  have  power  to  sus- 
pend the  permit  of  any  foreign  solicitors  from  practising  in  the 
Court,  if  they  are  found  guilty  of  disobeying  their  instructions, 
for  a  period  of  not  more  than  one  month.  The  time  of  suspen- 
sion can  be  extended  to  six  months  if  agreed  by  their  respective 
consuls  in  Shanghai. 

10  —  In  hearing  cases  according  to  Chinese  law  the  Mixed 
Court  magistrate  should  give  his  decision  fairly  in  accordance 
with  the  customs  and  manners  of  the  Chinese  merchants  and 
people  if  there  are  no  precedents  for  reference. 

11  —  All  persons  implicated  in  a  case  must  obey  the  decisions 
of  the  Mixed  Court  magistrate,  which  are  to  be  delivered  with 
the  acquiescence  of  the  foreign  assessors. 

12  —  Existing  regulations  of  the  Mixed  Court  will  remain 
in  force  if  they  do  not  conflict  with  any  of  the  foregoing  articles. 

foreign  Ministers  may  be  consulted  about  those  articles  which  are 
Inconvenient  and  unacceptable  to  the  Chinese";  North  China  Herald, 
February  2,    1906,    p.    228-9. 


COURT   OF   CONSULS,   SHANGHAI  249 

VII— 4— EULES  OF  1902,  MIXED  COURTS   OF  THE 
INTERIS^ATIONAL  AND  FRENCH  SETTLEMENTS  ' 

1  —  In  all  civil  cases  between  Chinese  the  plaintiff  will  fol- 
low the  defendant,  and  will  sue  him  before  the  Mixed  Court  of 
his  (the  defendant's)  residence. 

2  —  In  all  criminal  cases  of  Chinese  against  Chinese,  where 
foreigners  are  not  concerned,  and  in  all  police  cases  against 
Chinese  residents  in  the  Settlements,  the  Mixed  Court  of  the 
Settlement  in  which  the  crime  or  contravention  has  been  com- 
mitted is  alone  competent. 

3  —  In  mixed  civil  cases — 

(a)  If  the  plaintiff  is  a  foreigner  (not  of  French  nationality) 
and  the  Chinese  defendant  is  a  resident  of  the  International 
Settlement,  he  is  to  be  sued  before  the  Mixed  Court  of  the  In- 
ternational Settlement. 

(b)  If  the  plaintiff  is  French  and  the  Chinese  defendant  is 
a  resident  of  the  French  Settlement,  he  is  to  be  sued  before  the 
Mixed  Court  of  the  French  Settlement. 

(c)  If  the  plaintiff  is  a  foreigner  (not  of  French  nationality) 
and  the  Chinese  defendant  is  a  resident  of  the  French  Settle- 
ment, the  latter  shall  be  sued  before  the  Mixed  Court  of  the  In- 
ternational Settlement,  whose  warrant  or  summons  for  his  ap- 
pearance, after  counter-signature  by  the  French  Consul-Oen- 
eral,  will  be  executed  or  served  by  the  runners  of  the  Interna- 
tional Mixed  Court,  with  the  assistance  of  the  police  of  the 
French  Settlement,  without  previous  hearing  in  the  Mixed  Court 
of  the  French  Settlement. 

(d)  If  the  plaintiff  is  French  and  the  Chinese  defendant  is 
a  resident  of  the  International  Settlement,  the  latter  shall  be 
sued  before  the  Mixed  Court  of  the  French  Settlement,  whose 
warrant  or  summons  for  his  appearance,  after  counter-signature 
by  the  Senior  Consul,  will  be  executed  or  served  by  the  runners 
of  the  French  Mixed  Court,  with  the  assistance  of  the  police  of 
the  International  Settlement,  without  a  previous  hearing  in  the 
Mixed  Court  of  the  International  Settlement. 

4  —  In  criminal  cases  where  a  foreigner  (not  of  French  na- 
tionality) is  complainant,  the  Mixed  Court  of  the  International 
Settlement  is  competent;  if  a  Frenchman  is  complainant,  the 
Mixed  Court  of  the  French  Settlement  is  competent. 

The  provisions  under  clauses  3  (c)  and  3  (d)  as  to  executing 
warrants  also  apply  under  this  clause. 

Shanghai,  June  10,  1902. 
1  Parliamentary  Papers,   1903,  vol.   Iv,  p.  603. 


YIII— MACDONALD  v.  ANDERSON,  TIENTSIN,  1904  ^ 

PORTION   OF   OPINION   BY   F.    S.   A.   BOURNE,   J.,   OF   THE 
BRITISH    SUPREME    COURT   FOR    CHINA 

Mr.  Kent  [for  defendant]  relied  firstly  on  Hanson  v.  Watson 
("North  China  Herald,"  8th  October,  1899)  in  which  Hannen,  C. 
J.,  decided  that  Shanghai  land  held  under  a  perpetual  lease  was 
realty  in  English  law,  and  secondly  on  the  principle  that  limita- 
tion of  action  belongs  to  procedure  which  is  governed  by  the 
lex  fori,  that  is  here  English  law.  In  regard  to  the  first  point 
I  hold  that  the  law  of  China  ought  to  be  applied  to  the  facts  of 
this  case.  The  Court  administers  the  law  of  England  (1865 
Order-in-Council,  art.  5),  but  what  is  the  law  of  England  in  re- 
gard to  immovable  property  situated  within  the  dominions  of 
the  Emperor  of  China?  Undoubtedly  that  rights  in  respect  of 
such  property  shall  be  governed  by  the  lex  situs,  that  is  by 
the  law  of  China  (Story's  Conflict  of  Law,  ch.  X:  Heffter,  §42, 
V;  Dicey's  Conflict  of  Laws,  Rule  138:  Wushishan  case,  "North 
China  Herald,"  XXIII,  p.  90). 

To  apply  the  law  of  English  realty  to  land  under  the 
sovereignty  of  China  is  to  disregard  the  distinction  between  the 
real  and  personal  statutes — a  fundamental  principle  of  Private 
International  Law  which  can  be  traced  back  through  the  legal 
history  of  the  Western  world  to  the  time  of  the  Roman  Re- 
public, and  which  is  as  necessary  to-day  as  ever.  It  is  true  that 
our  extraterritorial  rights  in  China  are  not  rooted  in  the  his- 
tory of  Western  law,  as  are  those  in  the  Levant,  for  they  are 
the  creatures  of  the  Treaties  with  China,  the  earliest  of  which 
was  ratified  in  1842;  but  I  think  there  is  no  doubt  that  the  Or- 
ders-in-Council,  from  which  this  Court  derives  its  jurisdiction, 
were  framed  on  the  long-established  lines  of  an  extraterritorial 
personal  law.  When  article  5  of  the  Orders-in-Council  of  1865 
provides  that  His  Majesty's  jurisdiction  shall,  as  far  as  circum- 
stances admit,  be  exercised  upon  the  principles  and  in  con- 
formity with  the  Common  Law,  the  Rules  of  Equity,  the  Statute 
Law  and  other  law  for  the  time  being  in  force  in  and  for  Eng- 
land, it  could  not  have  been  intended  that  the  Court  was  to  ap- 
ply to  land  in  China  the  English  law  in  regard  to  land  in  Eng- 
land  (cf.  Westlake,  3rd  edition,  p.  226).     A  well-known  rule  of 


1  The   judgment   was   pronounced    on    January   16,    1904.     The   case   Is 
reported  in  North  China  Herald,  February  5,  1904,  vol.  Ixxii,  p.  247-50. 


MACDONALD  v  ANDERSON  251 

construction  requires  that  such  an  intention  being  to  change 
the  Common  Law,  should  be  explicitly  stated  (cf.  Story,  §463): 
"It  is  in  the  last  degree  improbable  that  the  Legislature  would 
overthrow  fundamental  principles  .  .  .  without  expressing  its 
intention  with  iiTesistible  clearness."  (Maxwell's  Interpretation 
of  Statutes,  3rd  edition,  p.  113.)  The  principle  that  land  and  its 
incidents  are  subject  to  the  lex  situs  is  not  arbitrary,  but  found- 
ed upon  cogent  considerations  of  justice  and  convenience — one 
of  the  most  obvious  of  which  is  that  contiguous  plots  of  land 
should  be  subject  to  the  same  law  in  regard  to  such  incidents 
as  prescription  and  servitudes.  The  land  of  British  subjects 
at  Tientsin  is  often  conterminous  with  that  owned  by  French- 
men, Germans  and  subjects  of  other  Treaty  Powers.  If  the 
home  land  law  of  each  proprietor  is  to  apply  to  his  land  at 
Tientsin  there  will  be  different  periods  of  limitation,  prescrip- 
tion for  servitudes,  etc.,  according  to  the  nationality  of  the  own- 
er for  the  time  being.  For  example,  the  German  period  of  limi- 
tation is  30  years  with  conditions,  (German  civil  code  §  927)  and 
the  French  also  30  years  (code  Napoleon  civil,  §2262),  while  the 
English  is  12  years;  that  is,  a  British  subject  could  acquire  a 
title  to  a  part  of  his  German  neighbor's  land  by  12  years  pos- 
session, while  the  German  could  only  get  the  same  right  by  30 
years  possession  of  the  British  subject's  land,  or  the  German 
might  reduce  the  necessary  period  from  30  to  12  years  by 
transferring  the  legal  estate  to  a  British  subject.  Such  injustice 
and  confusion  must  in  any  case  throw  doubt  on  a  construction 
involving  them;  but  I  can  find  no  colour  for  such  a  construction 
either  in  the  Foreign  Jurisdiction  Act  or  in  the  China  Orders-in- 
Council.  The  same  reasoning  excludes  the  law  of  the  owner's 
domicile;  and  cf.  Doe  dem.  Birtwhistle  v.  Vardell,  5  B.  and  C, 
p.  451,  per  Abbott,  C.  J.  Morever,  supposing  that  we  were  in  a 
circulus  inextricabilis  and  that  while  English  law  applies  the 
lex  situs,  the  lex  situs  applies  English  law,  that  law  cannot  be 
the  law  of  realty,  and  must,  therefore,  English  law  being  ex- 
hypothesi  to  be  applied,  be  the  law  of  personalty.  For  the  dis- 
tinction in  English  law  between  realty  and  personalty  is  not 
founded  on  principle,  but  is  historically  derived  from  the  old 
forms  of  actions  (cf.  Goodere's  Real  Property,  3rd  ed.,  p.  6). 
Realty  included  only  interests  in  land  for  the  enforcement  of 
which  a  real  action  was  available.  But  a  real  action  in  England 
was  not  open  to  a  Plaintiff  in  regard  to  any  interest  in  land 
but  freehold,  certainly  not  in  regard  to  land  under  sovereignty 
of  a  Foreign  Prince,  a  result  utterly  repugnant  to  feudal  theory 
(Digby's  Law  of  Real  Property,  p.  69).  Therefore,  foreign  land 
cannot  be  realty  in  English  law,  unless  explicitly  made  so  by 
legislation.     Supposing  then  English  law  has  to  be  applied,  land 


252  APPENDIX  VIII 

in  China  would  fall  under  the  same  law  as  English  chattels  real, 
and  for  the  same  reason — that  there  would  have  been  no  real 
action  open  to  the  Plaintiff  (cf.  Williams'  Real  Property,  16th  ed., 
p.  2).  When  foreign  lands — even  foreign  possessions  of  the 
Crown — were  intended  to  be  held  under  an  English  feudal  tenure, 
this  was  explicitly  stated,  e.  g.,  when  in  1669  Charles  II  granted 
Bombay  to  the  East  India  Company  it  was  "to  be  held  of  the 
King  in  common  soccage  as  of  the  Manor  of  East  Greenwich." 
Stress  was  laid  at  the  Bar  and  in  the  judgnaent  in  Hanson  y. 
Watson  on  the  fact  that  the  tenure  of  the  Chinese  land  in  ques- 
tion corresponded  with  some  particular  English  tenure  of  land. 
But  that  would  seem  to  be  immaterial.  Will  the  Courts  in  Eng- 
land apply  the  English  law  of  realty  to  possession  or  owner- 
ship of  land  in  the  United  States  because  the  conditions  of  the 
tenure  chance  to  agree  with  some  English  mode  of  holding 
land?  The  question  is  precluded  by  the  fact  that  the  land  is 
foreign.  But  I  should  have  been  bound  by  the  decision  in  Han- 
son V.  Watson  if  that  case  had  not  been  virtually  overruled,  as 
it  seems  to  me,  by  a  subsequent  case  in  the  Privy  Council,  Sec- 
retary of  State  for  Foreign  Affairs  v.  Charlesworth  Pilling  & 
Co.,  (1901)  A.  C,  p.  373.  Their  Lordships  say  at  p.  384:  "It  is 
going  a  long  way  beyond  the  immunities  accorded  to  British 
subjects  in  Zanzibar,  and  beyond  the  reason  of  these  immunities 
to  say  that  the  moment  a  plot  of  land  is  purchased  by  an  English- 
man it  is  stamped  with  the  same  character  and  is  attended  by 
the  same  incidents  that  would  belong  to  it  if  it  were  actually 
ti-ansferred  to  England  and  surrounded  by  other  English  land; 
and  to  say  that  his  neighbors,  who  may  or  may  not  be  British 
subjects,  must  have  their  rights  and  liabilities  governed  by  its 
fictitious  and  not  by  its  actual  situation.  Their  Lordships  hold 
that  the  grant  of  extraterritoriality  does  not  involve  any  such 
conclusion,  and  that  the  Vice-Consul  is  right  in  holding  that  "in 
this  case  the  local  law  applies."  It  is  true  that  the  court  in 
Zanzibar  had  as  its  local  law  the  Mahomedan  code,  a  certain 
written  law,  while  we  in  China  are  thrown  back  on  a  very  few 
written  rules — the  Penal  code — the  greater  part  of  which  cannot 
be  applied  to  a  Christian  community — upon  local  customs  and 
upon  the  Judge's  conscience.  But  that  is  not  a  legal  reason  for 
applying  the  English  feudal  tenures  to  land  in  China,  although 
it  may  be  a  moral  one  for  legislation.  I  am  clear  that  I  ought 
to  apply  Chinese  law  to  the  facts  of  this  case. 

In  regard  to  Mr.  Kent's  second  contention  that  limitation  of 
action  belongs  to  procedure  and  is  therefore  governed  by  the 
lex  fori,  although  Professor  Dicey  at  page  525  leans  to  the 
opinion  that  limitation  of  action  in  regard  to  immovables  is 
governed  by  the  lex  fori,  I  think  the  reasoning  of  Mr.  Foote  on 


MACDONALD  v.  ANDERSON  253 

pages  142  to  145  of  his  Private  International  Jurisprudence,  read 
in  connection  with  the  facts  of  this  case,  is  conclusive  that  where 
the  lex  situs  and  lex  fori  are  different,  as  they  are  here,  limi- 
tation of  action  must  be  governed  by  the  former.  Cf.  Pitt  v- 
Dacre  1876,  3  Ch.  D.  295;  (Westlake  §171.)  I  therefore  hold 
that  Real  Property  Limitation  Act  does  not  apply. 

.  .  .  .  The  law  applicable  to  land  in  China  owned  by  His 
Majesty's  subjects  has  been  so  long  a  moot  point  and  the  inter- 
ests involved  are  so  large  that  I  think  I  ought,  now  that  the  ques- 
tion has  been  raised  by  this  suit,  to  state  my  opinion  of  the  effect 
of  the  Judgment  of  the  Privy  Council  in  the  above  case — Sec- 
retary of  State  r.  Charlesworth  Pilling  &  Co.  (1901)  A.  C.  p. 
373.  That  case  seems  by  analogy  to  establish  two  propositions, 
that  Chinese  law  ought  to  be  applied  by  His  Majesty's  Courts 
in  China  to  the  incidents  of  land  in  China,  and  that  His  Majesty's 
judges  in  China  ought  to  take  judicial  notice  of  Chinese  law. 
In  regard  to  the  first,  the  greater  part  of  Chinese  written  law 
would  be  void  and  inoperative  in  an  English  Court  as  incon- 
sistent with  the  policy  of  English  law — Dicey,  pp.  29  and  32: 
Fitzgerald,  in  re  (1903)  1  Ch.  941.  Further  Chinese  land  law 
consists  almost  entirely  of  local  custom:  a  great  deal  of  Eng- 
lish law  has  been  uniformly  followed  for  half  a  century  by  His 
Majesty's  subjects  in  China,  and  has  thus  acquired  the  force  of 
Chinese  law,  r.  g.,  testamentary  disposition  of  land  in  China 
according  to  the  English  form,  and  English  forms  of  conveyan- 
cing. Where  there  is  no  custom,  the  duty  of  the  Chinese  judge 
is  to  decide  according  to  good  conscience.  The  British  Court 
would,  I  conceive,  in  such  cases  draw  on  the  civil  law  as  de- 
veloped by  modern  continental  codes  and  text-writers,  includ- 
ing our  own  law  of  personal  property,  which  comes  in  some  re- 
spects from  the  same  source,  cf.  Maine's  Ancient  Law,  page  283. 
If  a  land  law  so  derived  is  thought  too  uncertain  to  support  the 
large  foreign  commercial  interests  now  centered  in  Shanghai  and 
Tientsin,  legislation  alone  can  supply  the  remedy.  Rights  of 
limitation  and  servitudes  might  be  governed  by  Land  Regulation 
approved  by  the  Treaty  Powers,  and  succession  ab  intestato  by 
Order-in-Council.  In  regard  to  judicial  notice,  there  is  in  fact 
no  Chinese  written  civil  law.  Judicial  notice  might  be  taken  of 
the  Penal  Code  of  the  present  dynasty,  translated  by  Staunton, 
London,  1810,  but  custom  would  have  to  be  proved  by  evidence. 


IX— CONSULAR  COURT  REGULATIONS 
FOR  TURKEY,  1862 


How 
com- 
menced 

Three 
classes 
of  ordi- 
nary 
actions 


Demand 
neces- 
sary in 
contract 
and  re- 
plevin. 

Peti- 
tioner to 
deposit 
money. 

Notice 
to  de- 
fendant 


Service 


Default 


Dam- 
ages 


Answer 
Settle- 
ment or 
reference 
encour- 
aged. 


Amend- 
ments 


I  — ORDINARY  CIVIL  PROCEEDINGS 

1  —  Civil  proceedings  between  American  citizens  must  com- 
mence by  written  petition  verified  by  oath  before  the  consul. 

2  —  Ordinary  personal  civil  actions  are  of  three  classes,  viz. : 
Wrong — when  damages  are  claimed  for  a  wrong. 
Contract — comprising  all  cases  of  contract  or  debt. 
Replevin — when  possession  of  a  specific  article  is  claimed. 

3  —  In  contract,  the  petition  must  aver  that  payment  or  a 
performance  of  the  conditions  of  the  contract  has  been  de- 
manded and  withheld;  and  in  replevin,  that  the  articles  to  be 
replevied  have  been  demanded. 

4  —  The  petitioner  shall  be  required  to  deposit  a  reasonable 
sum  to  defray  the  probable  expenses  of  court  and  defendant's 
costs.    Subsequent  deposits  may  be  required,  if  found  necessary. 

5  —  Upon  deposit  of  the  money,  the  consul  shall  order  no- 
tice on  the  petition  in  writing,  directing  defendant  to  appear 
before  him  at  a  given  day  and  hour  to  file  his  written  answer 
on  oath. 

6  —  Notice  must  be  served  on  each  defendant  at  least  five 
days  before  return  day,  by  delivery  of  an  attested  copy  of  the 
petition  and  order  and  of  any  accompanying  account  or  paper. 

7  —  Personal  service  should  always  be  required  when  prac- 
ticable. 

8  —  On  proof  of  due  notice,  judgment  by  default  shall  be 
pronounced  against  any  defendant  failing  to  appear  and  file  his 
answer  as  required;  but  the  default  may  be  taken  off  for  good 
cause,  within  one  day  after  (exclusive  of  Sunday). 

9  —  But  in  actions  of  wrong  and  all  others  where  the  dam- 
ages are  in  their  nature  unliquidated  and  indefinite,  so  that 
they  cannot  be  calculated  with  precision  from  the  statements  of 
the  petition,  the  amount  of  the  judgment  shall  be  ascertained 
by  evidence,  notwithstanding  the  default. 

10  —  If  defendant  appears  and  answers,  the  consul,  having 
both  parties  before  him,  shall,  before  proceeding  further,  en- 
courage a  settlement  by  mutual  agreement  or  by  submission  of 
the  case  to  referees  agreed  on  by  the  parties,  a  majority  of 
whom  shall  decide  it. 

11  —  Parties  should  at  the  trial  be  confined  as  closely  as 
may  be  to  the  averments  and  denials  of  the  statement  and 
answer,  which  shall  not  be  altered  after  filing  except  by  leave 
granted  in  open  court. 


COURT  REGULATIONS,  TURKEY 


255 


12  —  On  application  of  either  party  and  advance  of  the 
lees,  the  consul  shall  compel  the  attendance  of  any  witness 
within  his  jurisdiction,  before  himself,  referees,  or  commis- 
sioners. 

13  —  Each  party  is  entitled,  and  may  be  required,  to  testify. 

14  —  Judgment  may  be  given  summarily  against  either  party 
failing  to  obey  any  order  or  decree  of  the  consul. 

ATTACHMENT  AND  ARREST 

15  —  For  sufficient  cause  and  on  sufficient  security,  the  con- 
sul, on  filing  a  petition,  may  grant  a  process  of  attachment  of 
any  defendant's  property  to  a  sufficient  amount,  or  of  arrest  of 
the  person  of  any  defendant  not  a  married  woman,  nor  in  the 
service  of  the  United  States  under  commission  from  the  Presi- 
dent, nor  otherwise  exempted  by  law. 

16  —  Defendant  may  at  any  time  have  the  attachment  dis- 
solved by  depositing  such  sum  or  giving  such  security  as  the 
<;onsul  may  require. 

17  —  Perishable  property,  or  such  as  is  liable  to  serious 
depreciation  under  attachment,  may,  on  petition  of  either  party, 
t)e  sold  by  the  consul's  order  and  its  proceeds  deposited  in  the 
<!onsulate. 

18  —  Any  defendant  arrested  or  imprisoned  on  civil  petition 
shall  be  released  on  tender  of  a  sufficient  bond,  deposit  of  a 
sufficient  sum,  or  assignment  of  sufficient  property. 

19  —  Any  person  under  civil  arrest  or  imprisonment  may 
Tiave  his  creditor  cited  before  the  consul  to  hear  a  disclosure  of 
the  prisoner's  affairs  under  oath,  and  to  question  him  thereon, 
and  if  the  consul  shall  be  satisfied  of  its  truth  and  thoroughness, 
and  of  the  honesty  of  the  debtor's  conduct  toward  the  creditor, 
he  shall  forever  discharge  him  from  arrest  upon  that  debt, 
provided  the  prisoner  shall  offer  to  transfer  and  secure  to  his 
creditor  the  property  disclosed  or  sufficient  to  pay  the  debt,  at 
the  consul's  valuation. 

20  —  The  creditor  must  advance  to  the  jailer  his  fees  and 
payment  for  his  prisoner's  board  until  the  ensuing  Monday, 
and  afterwards  weekly,  or  the  debtor  will  be  discharged  from 
imprisonment  and  future  arrest. 


Ameri- 
can wit- 
nesses 
com- 
pelled 
to  at- 
tend 
Parties 
are  wit- 
nesses 
Decrees 
to  be 
obeyed 


Dissolu- 
tion of 
attach- 
ments 

Sale   of 
perish- 
able 
prop- 
erty- 


Release 
of  debtor 


Debtor's 
dis- 
closure 


Debtor's 
board 


EXECUTION 

21  —  On  the  second  day  after  judgment  (exclusive  of  Sun- 
day) execution  may  issue  enforcing  the  same,  with  interest  at 
12  per  cent,  a  year,  against  the  property  and  person  of  the  deb- 
tor, returnable  in  30  days  and  renewable. 


256 


APPENDIX   IX 


Seizure 
and  sale 
of  prop- 
erty 


Effect  of 
final 
judg- 
ment 
for  de- 
fendant 


22  — Sufficient  property  to  satisfy  the  execution  and  all  ex- 
penses may  be  seized  and  sold  at  public  auction  by  the  officer 
after  due  notice. 

23 Property  attached  on  petition  and  not  advertised  for 

sale  within  ten  days  after  final  judgment  shall  be  returned 
to  the  defendant. 

24  —  When  final  judgment  is  given  in  favor  of  defendant, 
his  person  and  property  are  at  once  freed  from  imprisonment 
or  attachment,  and  all  security  by  him  given  discharged.  And 
the  consul  may,  at  his  discretion,  award  him  compensation  for 
any  damage  necessarily  and  directly  sustained  by  reason  of 
such  attachment,  arrest,  or  imprisonment. 


EXEMPTION  AND  DISCHARGE 

25  —  The  consul  may  exempt  from  attachment,  seizure,  or 
assignment  any  articles  of  personal  property  indispensable  to 
the  comfort  of  the  owner  or  his  family,  and  he  may  at  any  time 
release  or  bail  any  debtor,  discharge  any  security  or  dissolve 
the  whole,  or  a  part,  of  any  attachment,  when  justice  requires. 


OFFSET 

26  —  In  actions  of  contract,  defendant  may  offset  petition- 
er's claim  by  any  contract  claim,  filing  his  own  claim  under  oath 
with  his  answer.  Petitioner  shall  be  notified  to  file  his  answer 
seasonably  on  oath,  and  the  two  claims  shall  then  be  tried 
together  and  but  one  judgment  given  for  the  difference,  if  any 
be  proved,  in  favor  of  either  party;  otherwise  for  defendant's 
costs. 

COST 

27  —  Except  as  hereinafter  provided,  the  party  finally  pre- 
vailing recovers  costs,  to  be  taxed  by  him  and  revised  by  the 
consul. 


Trus- 
tee's 
costs 


TRUSTEE    PROCESS 

28  — In  contract,  the  consul  may  order  defendant's  property 
or  credits  in  a  third  party's  hands  within  the  jurisdiction  of  the 
United  States  to  be  attached  on  the  petition,  by  serving  him 
with  due  notice  as  trustee,  provided  petitioner  secures  trustee 
his  costs  by  adequate  special  deposit. 

29  —  If  adjudged  trustee,  the  third  party  may  retain  his 
costs  from  the  amount  for  which  he  is  adjudged  trustee,  if  suf- 
ficient;  otherwise,  the  balance  of  trustee's  costs  must  be  paid 


COURT   REGULATIONS,   TURKEY 


257 


out  of  petitioner's   special    deposit,   as   must   the   whole   of  his 
costs  if  not  adjudged  trustee. 

30  —  The  amount  for  which  a  trustee  is  charged  must  be 
inserted  in  the  execution  and  demanded  of  him  by  the  officer 
within  ten  days  after  judgment,  or  all  claim  on  him  ceases. 
Process  against  the  property  or  person  of  trustee  may  issue  ten 
days  after  demand. 

31  —  If  petitioner  recovers  judgment  for  less  than  $10,  or 
if  less  than  $10  of  defendant's  property  or  credits  is  proved  in 
the  third  party's  hands — in  either  case  the  third  party  must 
be  discharged,  with  costs  against  petitioner. 


Demand 
upon 
execu- 
tion 
within 
ten  days. 


Debt 
must    be 
at   least 
10  dol- 
lars 


REPLEVIN 

32  —  Before  granting  a  writ  of  replevin,  the  consul  shall 
require  petitioner  to  file  a  sufficient  bond,  with  two  responsible 
sureties,  for  double  the  value  of  the  property  to  be  replevied, 
one  an  American  citizen,  or  petitioner  may  deposit  the  required 
amount. 


II  — TENDER,    ETC. 

33  —  Before  a  creditor  files  his  petition  in  contract,  his  deb-    Deposit 
tor  may  make  an  absolute  and  unconditional  offer  of  the  amount 

he  considers  due  by  tendering  the  money  in  the  sight  of  the 
creditor  or  his  legal  representative. 

34  —  If  not  accepted,  the  debtor  shall,  at  his  own  risk  and 
paying  the  charges,  deposit  the  money  with  the  consul,  who 
shall  receipt  to  him  and  notify  the  creditor. 

35  —  It  shall  be  paid  to  the  creditor  at  any  time  if  demand- 
ed, unless  previously  withdrawn  by  depositor. 

36  —  If  the  depositor  does  not  withdraw  his  deposit,  and 
upon  trial  is  not  adjudged  to  have  owed  petitioner  at  the 
time  of  the  tender  more  than  its  amount,  he  shall  recover  all  his 
costs. 


Demand 
or  with- 
drawal 


Costs 


OFFER   TO   BE    DEFAULTED 

37  —  At  any  stage  of  a  suit  in  contract  or  wrong,  defendant 
may  file  an  offer  to  be  defaulted  for  a  specific  sum  and  the  costs 
up  to  that  time,  and  if  petitioner  chooses  to  proceed  to  trial,  and 
does  not  recover  more  than  the  sum  offered  and  interest,  he 
shall  pay  all  defendant's  costs  arising  after  the  offer,  execution 
Issuing  for  the  balance  only. 


26S 


APPENDIX   IX 


III  —  REFERENCE 


Award 
and  ac- 
cept- 
ance 


When 
trans- 
mitted to 
minister 


38  —  When  parties  agree  to  a  reference,  they  shall  im- 
mediately file  a  rule  and  the  case  be  marked  "Referred";  a 
commission  shall  then  issue  to  the  referees,  with  a  copy  of  all 
papers  filed  in  the  case. 

39  —  The  referees  shall  report  their  award  to  the  consul, 
who  shall  accept  the  same  and  give  judgment  and  issue  exexcu- 
tion  thereon,  unless  satisfied  of  fraud,  perjury,  corruption,  or 
gross  error  in  the  proceedings. 

40  —  In  cases  involving  more  than  $500,  if  his  acceptance  is 
withheld,  th'e  consul  shall  at  once  transmit  the  whole  case,  with 
a  brief  statement  of  his  reasons  and  the  evidence  therefor,  to 
the  minister  resident,  who  shall  give  judgment  on  the  award  or 
grant  a  new  trial  before  the  consul. 


To  be 
claimed 
within 
one   day 

Must    be 
per- 
fected 
within 
five  days 


Appeal 
of  pris- 
oner sent 
to  Con- 
stanti- 
nople 


IV  —  APPEAL 

41  —  Appeals  must  be  claimed  before  three  o'clock  in  the 
afternoon  of  the  day  after  the  judgment  (excluding  Sunday),  but 
in  civil  cases  only  upon  sufficient  security. 

42  —  Within  five  days  after  judgment,  the  appellant  must 
set  forth  his  reasons  by  petition  filed  with  the  consul,  which 
shall  be  transmitted  as  soon  as  may  be  through  the  consul- 
general  to  the  minister,  with  a  copy  of  the  docket  entries  and 
of  all  papers  in  the  case. 

43  —  The  consul-general  may  allow  any  prisoner  (by  law 
entitled  to  appeal)  sent  to  Constantinople  for  imprisonment  on 
sentence  of  a  consul,  to  file  his  appeal  within  ten  days  after 
notice  of  his  arrival,  if  in  his  judgment  justice  would  be  pro- 
moted thereby,  requiring  such  prisoner  to  file  with  the  appeal 
his  petition,  which  shall  be  at  once  transmitted  to  the  minister. 


V  — NEW   TRIAL 


For  per- 
jury. 


Gener- 
ally 


44  —  On  proof  of  the  perjury  of  any  important  winess  of 
the  prevailing  party  upon  a  material  point  affecting  the  decision 
of  a  suit,  the  consul  who  tried  it  may  within  a  year  after  final 
judgment  grant  a  new  trial,  on  such  terms  as  he  may  deem  just. 

45  —  Within  one  year  after  final  judgment  in  any  suit  in- 
volving not  more  than  $500,  the  consul  who  tried  it,  or  his  suc- 
cessor, may  upon  sufficient  security  grant  a  new  trial,  when 
justice  manifestly  requires  it;  if  exceeding  $500,  with  concur- 
rence of  the  minister. 


COURT  REGULATIONS,  TURKEY 


259 


VI  — HABEAS  CORPUS 


46  —  No  consul  shall  recognize  the  claim  of  any  American 
citizen  to  hold  any  person  in  slavery  or  bondage  within  the 
Turkish  Empire. 

47  —  Upon  application  of  any  person  in  writing  and  under 
oath,  representing  that  he  or  any  other  person  is  enslaved,  un- 
lawfully imprisoned,  or  deprived  of  his  liberty  by  any  American 
citizen  within  the  jurisdiction  of  a  consul,  such  consul  or  the 
consul-general  may  issue  his  writ  of  habeas  corpus  directing 
such  citizen  to  bring  said  person,  if  in  his  custody  or  under 
his  control,  before  him,  and  the  question  shall  be  determined 
summarily,  subject  to  appeal. 


Slaves 
not  to  be 
held- 


Habeaa 
corpus 


VII  —  DIVORCE 


48  —  Libels  for  divorce  must  be  signed  and  sworn  to  before 
the  consul,  and  on  the  trial  each  party  may  testify. 

49  —  The  consul,  for  good  cause,  may  order  the  attachment 
of  libellee's  property  to  such  an  amount  and  on  such  terms  as 
he  may  think  proper. 

50  —  He  may  also,  at  his  discretion,  order  the  husband  to 
advance  to  his  wife  or  pay  into  court  a  reasonable  sum  to 
enable  her  to  prosecute  or  defend  the  libel,  with  a  reasonable 
monthly  allowance  for  her  support  pending  the  proceedings. 

51  —  Alimony  may  be  awarded  or  denied  the  wife  on  her 
divorce  at  his  discretion.  Custody  of  the  minor  children  may  be 
decreed  to  such  party  as  justice  and  the  children's  good  may 
require. 

52  —  Divorce  releases  both  parties,  and  they  shall  not  be 
remarried  to  each  other. 

53  —  Costs  are  at  the  discretion  of  the  consul. 


Parties 
are  wit- 
nesses 
Attacti- 
ment 


Husband 
to  ad- 
vance 
money 


Ali- 
mony 
Chil- 
dren 


Release 
of  both. 


Costs 


VIII  —  MARRIAGE 

54  —  Each  consul  shall  record  all  marriages  solemnized  by  Record 

him,  or  in  his  official  presence,  and  at  the  end  of  each  year  tiira Z^^' 
transmit  a  copy  to  the  Secretary  of  State  and  to  the  consul- 
general. 


IX  — BIRTHS  AND  DEATHS 

55  —  The  birth  and  death  of  every  American  citizen  or 
protege  within  the  limits  of  his  jurisdiction  shall  likewise  be 
recorded  and  annually  transmitted. 


260 


APPENDIX   rX 


X—  LIST   OF   CITIZENS  AND   PROTEGES 


List   of 
Citizens 


List  of 
prot§g6s 


Annual 
return 


Registra- 
tion 


56  —  Each  consul  shall  prepare  and  keep  a  correct  list  of  all 
adult  male  citizens  of  the  United  States  living  within  his  juris- 
diction, with  their  age,  birth  place,  occupation,  residence,  and 
year  of  arrival  in  Turkey,  and  the  names,  &c.,  of  the  members  of 
their  families;  adding  the  date  and  court  in  case  of  naturalized 
citizens.  , 

57  —  Also  a  similar  list  of  a  proteges  of  the  United  States, 
adding  the  year  of  their  original  protection,  by  whom  it  was 
granted,  and  where;  also  the  date  of  their  last  permit  of  resi- 
dence and  by  whom  issued. 

58  —  A  copy  of  said  lists  shall  be  transmitted  to  the  Secre- 
tary of  State,  to  the  minister  resident  and  to  the  consul-general, 
when  completed,  and  a  memorandum  of  the  changes  at  the  end 
of  each  year.  And  every  citizen  and  protege  is  required  to  reg- 
ister himself  and  family  at  the  consulate  each  December. 


Consul's 
former 
author- 
ity con- 
tinued 


XI  —  BANKRUPTCY,   PARTNERSHIP,   PROBATE,   &c. 

59  —  Until  promulgation  of  further  regulations,  consuls  will 
continue  to  exercise  their  former  lawful  jurisdiction  and  au- 
thority in  bankruptcy,  partnership,  probate  of  wills,  administra- 
tion of  estates,  and  other  matters  of  equity,  admiralty,  ecclesi- 
astical and  common  law  not  specially  provided  for  in  the  fore- 
going orders,  according  to  such  reasonable  rules,  not  repugnant 
to  the  Constitution,  treaties,  and  laws  of  the  United  States,  as 
they  may  find  necessary  or  convenient  to  adopt. 


XII  —  SEAMEN 

60  —  In  proceedings  or  prosecutions  instituted  by  or  against 
American  seamen,  the  consul  may,  at  his  discretion,  suspend  any 
of  these  rules  in  favor  of  the  seaman,  when,  in  his  opinion,  jus- 
tice, humanity,  and  public  policy  require  it. 


XIII  —  CRIMINAL   PROCEEDINGS 


How 
com- 
menced 


How  au- 
thenti- 
cated 


61  —  Complaints  and  informations  against  American  citizens 
should  always  be  signed  and  sworn  to  before  the  consul,  when 
the  complainant  or  informant  is  at  or  near  the  consul's  post. 

62  —  All  complaints  and  informations  not  so  signed  and 
sworn  to  by  a  citizen  of  the  United  States,  and  all  complaints 
and  informations  in  capital  cases,  must  be  authenticated  by  the 
consul's  certificate  of  his  knowledge  or  belief  of  the  substantial 


COURT   REGULATIONS,   TURKEY 


261 


truth  of  enough  of  the  complaint  or  information  to  justify  the 
arrest  of  the  party  charged. 

63  —  No  citizen  shall  be  arraigned  for  trial  until  the  offense 
charged  is  distinctly  made  known  to  him  by  the  consul  in  re- 
spondent's own  language;  in  cases  of  magnitude,  and  in  all 
cases  when  demanded,  an  attested  copy  (or  translation)  of  the 
complaint,  information,  or  statement  authenticated  by  the  con- 
sul shall  be  furnished  him  in  his  own  language  as  soon  as  may 
be  after  his  arrest. 

64  —  The  personal  presence  of  the  accused  is  indispensable 
throughout  the  trial. 

65  —  He  shall  always  have  and  be  informed  of  his  right 
to  testify,  and  cautioned  that  if  he  chooses  to  offer  himself  as 
a  witness,  he  must  answer  all  questions  that  may  be  propounded 
by  the  consul  or  his  order,  like  any  other  witness. 

66  —  The  government  and  the  accused  are  equally  entitled 
to  compulsory  process  for  witnesses  with  the  jurisdiction  of  the 
United  States;  and  if  the  consul  believes  the  accused  unable  to 
advance  the  fees,  his  necessary  witnesses  shall  be  summoned  at 
the  expense  of  the  United  States. 

67  —  When  punishment  is  by  fine,  costs  may  be  included  or 
remitted  at  the  consul's  discretion;  an  alternative  sentence  of 
not  less  than  30  days'  imprisonment  may  take  effect  on  non- 
payment of  any  part  of  the  fine  or  costs  adjudged  in  any  crim- 
inal proceeding. 

68  —  Any  prisoner  before  conviction  may  be  admitted  to 
bail  by  the  consul  who  tries  him,  except  in  capital  cases. 

69 No   prisoner   charged   with   a   capital   offense   shall   be 

admitted  to  bail  where  the  proof  is  evident  or  the  presumption 
of  his  guilt  great. 

70  —  After  conviction  and  appeal,  the  prisoner  may  be  ad- 
mitted to  bail  only  by  the  minister  or  consul-general. 

71  —  Any  citizen  of  the  United  States  offering  himself  as 
bail  shall  sign  and  swear  before  the  consul  to  a  schedule  of 
unencumbered  property  of  a  value  at  least  double  the  amount 
of  the  required  ball. 

72  —  Any  other  proposed  bail  or  security  shall  sign  and 
swear  before  the  consul  to  a  similar  schedule  of  unencumbered 
personal  property  within  the  local  jurisdiction  of  the  consulate, 
or  he  may  be  required  to  deposit  the  amount  in  money  or  valu- 
ables with  the  consul. 

73  —  Unless  such  sufScient  citizen  becomes  bail,  or  such 
deposit  is  made,  at  least  two  sureties  shall  be  required. 

74  —  Any  American  bail  may  have  leave  of  the  consul  to 
surrender  his  principal  on  payment  of  all  costs  and  expenses. 


Copy  of 
accusa- 
tion 


Pres- 
ence of 
accused- 
May  tes- 
tify 


Ameri- 
can wit- 
nesses 
com- 
pelled  to 
attend. 


Fine  and 
costs 


Capital 
cases 


After 
convic- 
tion 

Ameri- 
can  bail 


Foreign 
bail 


Two 
sure- 
ties 

Surren- 
der 


262 


APPENDIX  IX 


Prose- 
cutor 
may    be 
required 
to  give 
security 


75  —  Any  complainant,  imformant,  or  prosecutor  may  be  re- 
quired to  give  security  for  all  costs  of  the  prosecution,  includ- 
ing those  of  the  accused;  and  every  complainant,  &c.,  not  a 
citizen  of  the  United  States  shall  be  so  required,  unless,  in  the 
consul's  opinion,  justice  will  be  better  promoted  otherwise;  and 
when  such  security  is  refused  the  prosecution  shall  abate. 


Costs 


Minor  of- 
fenses 


HONORABLE  ACQUITTAL 

76  —  When  the  innocence  of  the  accused  both  in  law  and 
in  intention  is  manifest,  the  consul  shall  add  to  the  usual  judg- 
ment of  acquittal  the  word  "Honorably." 

77  —  In  such  case  judgment  may  be  given  and  execution 
issued  summarily  against  any  informer,  complainant,  or  prose- 
cutor for  the  whole  costs  of  the  trial,  including  those  of  the 
accused,  or  for  any  part  of  either  or  both,  if  the  proceeding- 
appears  to  have  been  groundless  and  vexatious,  originating  in 
corrupt,  malicious,  or  vindictive  motives. 

78  —  Consuls  will  ordinarily  encourage  the  settlement  of  all 
prosecutions  not  of  a  heinous  character  by  the  parties  aggrieved 
or  concerned. 


Lan- 
guage 

Not 
Chris- 
tians 
Atheists 


AfHrma- 
tion- 


XIV  —  OATHS 

79  —  Oaths  shall  be  administered  in  some  language  that 
the  witness  understands. 

80  —  A  witness  not  a  Christian  shall  be  sworn  or  examined 
according  to  his  religious  belief. 

81  —  An  avowed  atheist  shall  not  be  sworn,  but  may  affirm 
under  the  pains  and  penalties  of  perjury,  the  credibility  of  his 
evidence  being  for  the  consideration  of  the  consul. 

82  —  A  Christian  conscientiously  scrupulous  of  an  oath  may 
affirm  under  the  pains  and  penalties  of  perjury. 


Civil 
docket 


Crimi- 
nal 
doclcet 


XV  —  DOCKETS,  RECORDS,  &c. 

83  —  Each  consul  shall  keep  a  regular  docket  or  calendar  of 
all  civil  actions  and  proceedings,  entering  each  case  separately, 
numbering  consecutively  to  the  end  of  his  term  of  office,  with  the 
date  of  filing,  the  names  of  the  parties  in  full,  their  nationality, 
the  nature  of  the  proceeding,  the  sum  or  thing  claimed,  with 
minutes  and  dates  of  all  orders,  decrees,  continuances,  appeals, 
and  proceeding  until  final  judgment. 

84  —  He  shall  keep  another  regular  docket  for  all  criminal 
cases  with  sufficient  similar  memoranda. 


COURT   REGULATIONS,   TURKEY 


263 


85 —  Upon  final  judgment  each  case  shall  be  recorded  in  a 
book  of  records,  at  sufficient  length  to  identify  it  and  prevent  a 
second  proceeding  for  the  same  cause. 

86  —  Civil  proceedings  are  to  be  kept  distinct  from  criminal 
and  recorded  in  separate  books,  and  returns  of  each  made  to 
the  consul-general  at  the  end  of  each  year. 

87 Each  docket  and  book  records  shall  contain  an  index. 

88  —  All  original  papers  shall  be  filed  at  once  and  never  re- 
moved; no  person  but  an  officer  of  the  consulate  or  the  minister 
should  be  allowed  access  to  them.  All  papers  in  a  case  must 
be  kept  together  in  one  inclosure  and  numbered  as  in  the 
docket  with  the  parties'  names,  the  nature  of  the  proceeding, 
the  year  of  filing  the  petition  and  of  final  judgment  conspicu- 
ously marked  on  the  inclosure  and  each  year's  cases  kept  by 
themselves  in  their  order. 


Records 


Annual 
returns 


Index. 

Filing 
papers 


XVI  —  LIMITATION  OF  ACTIONS  AND  PROSECUTIONS 

89  —  Heinous  offenses,  not  capital,  must  be  prosecuted 
within   six  years;    minor  offenses  within  one. 

90  —  Civil  actions  based  on  written  promise,  contract,  or 
instrument  must  be  commenced  within  six  years  after  the  cause 
of  action  accrues;   others  within  two. 

91  —  In  prosecutions  for  heinous  offenses,  not  capital,  and 
in  civil  cases  involving  more  than  $500,  any  absence  of  respon- 
dent or  defendant  for  more  than  three  months  at  a  time  from 
Turkey  shall  be  added  to  the  limitation;  and  in  civil  cases  in- 
volving more  than  $100  the  period  during  which  the  cause  of  ac- 
tion may  be  fraudulently  concealed  by  defendant  shall  likewise 
be  added. 

92  —  No  action  in  contract,  replevin,  or  wrong  shall  be  com- 
menced for  less  than  $5,  no  trustee  process  for  less  than  $10, 
no  property  attached  for  less  than  $25,  nor  the  person  arrested 
for  less  than  $50;  and  if  petitioner  recovers  less  than  the  re- 
spective amount  in  either  case,  he  shall  pay  all  costs  unless  for 
special  reasons  to  the  contrary. 


Criminal 
Civil 

Absence 


Fraudu- 
lent con- 
ceal- 
ment 


Mini- 
mum 


XVII  —  GENERAL  PROVISIONS 

93  — All  trials  and  proceedings  in  the  United  States  con- 
sular courts  in  Turkey  shall  be  open  and  public  and  conducted 
in  the  English  language. 

94  —  Papers  and  testimony  in  a  foreign  language  shall  be 
translated  into  English  by  a  sworn  interpreter  appointed  by  the 
consul;  in  civil  cases  to  be  paid  by  petitioner.    Oaths  and  ques- 


Trlals 
public 


In  En- 
glish 
Inter- 
preter 


264 


APPENDIX   IX 


Trans- 
lations 
Testi- 
mony 


Adjourn- 
ments 


First 
Monday 


Holi- 
days 


Officer 


Copies 
on  ap- 
peal 


Copies 


Defini- 
tion of 
"consul 


Asso- 
ciates 


Con- 
tempt 
pun- 
ished 


Attor- 
ney 


tions  shall  be  translated  by  the  interpreter  from  the  English 
for  any  witness  who  does  not  understand  English. 

95  —  Parties  may  be  required  to  file  their  petitions,  answers, 
complaints,  informations,  and  all  other  papers  addressed  to  the 
court,  in  English,  or  they  may  be  translated  by  the  interpreter, 
at  the  consul's  discretion.  All  testimony  must  be  taken  in 
writing  in  open  court  by  the  consul  or  his  order  and  signed  by 
the  witness  after  being  read  over  to  him  for  his  approval  and 
correction,  and  it  shall  form  part  of  the  papers  in  the  case. 

96.  —  The  consul  may  adjourn  his  court  from  time  to  time 
and  place  to  place  within  his  jurisdiction,  always  commencing 
proceedings  and  giving  judgment  at  the  consulate. 

97  —  The  first  Monday  of  each  month  shall  be  a  regular 
court  day  to  which  civil  actions  will  stand  adjourned  unless 
otherwise  provided  for. 

98  —  No  court  shall  sit  on  February  22,  July  4,  December  25, 
or  on  any  Sunday. 

99 — All  processes  not  served  by  the  consul  personally  must 
be  executed  by  an  officer  of  the  consulate,  who  shall  sign  and 
swear  to  his  return  before  the  consul,  specifying  the  time  and 
mode  of  service  and  annexing  an  account  of  his  fees;  process 
from  the  consul-general  shall  be  served  by  the  marshal  or  his 
deputy. 

100  —  On  appeal,  copies  of  all  the  papers  must  be  paid  for  in 
advance  by  the  appellant,  except  in  criminal  cases  where  re- 
spondent is  unable  to  pay. 

101  —  Any  person  interested  is  entitled  to  a  copy  of  any 
paper  on  file  on  prepayment  of  the  fee. 

102  —  Reasonable  clearness,  precision,  and  certainty  should 
be  required  in  the  papers,  and  substantial  justice  and  all  prac- 
ticable dispatch  is  expected  in  the  decisions;  but  technical  ac- 
curacy is  not  essential. 

103  —  The  word  "consul"  is  intended  to  include  the  consul- 
general,  and  any  vice-consul  or  deputy  consul  actually  exercising 
the  consular  power  at  any  consulate,  unless  the  sense  requires 
a  more  limited  construction. 

104  —  Each  associate  in  a  consular  trial  shall,  before  enter- 
ing on  his  duties,  be  sworn  by  the  consul.  Before  taking  the 
oath,  he  may  be  challenged  by  either  party  and  for  sufficient 
cause  excused  and  another  drawn. 

105  —  Consuls  will  always  preserve  order  in  court,  punishing 
summarily  any  contempt  committeed  in  their  presence  or  any 
refusal  to  obey  their  lawful  summons,  or  order,  by  imprison- 
ment not  exceeding  24  hours,  or  by  fine  not  exceeding  $50,  and 
costs. 

106  —  Every  party  to  a  civil  or  criminal  proceeding  may  be 
heard  in  person  or  by  attorney  of  his  choice,  or  by  both,  but 


COURT  REGULATIONS,  TURKEY 


265 


the  presence  of  counsel  shall  be  under  the  exclusive  control  and 
discretion  of  the  consul. 

107  —  The   accounts   of   the   consular   courts    shall   be   kept    Ac- 
in  United  States  currency,  and  evex-y  order  or  deposit,  decree  of    etc..  in 
costs,  taxation  of  fees,  and  generally  every  such  paper  issuing   FJ^^^®** 
originally    from    the    court,    shall    be    expressed    in    dollars    and    money- 
cents,    and    satisfied    in    United    States    metallic    money    or    its 
equivalent  coin  as  fixed  by  law. 


XVIII  —  PROCEEDINGS   WITH  FOREIGNERS. 

108  —  All     petitions,     informations,     complaints,     and     other    How 
papers  from  subjects  of  the  Sublime  Porte,  or  subjects  or  citi-   nica^dJ 
zens    of    any    other    friendly    power,    should    be    communicated 
through  the  Turkish  authorities  or  the  consulate  of  such  other 
power. 

109  —  All  notices,  answers,  &c.,  should  be  communicated  to 
such  subject  or  citizen  through  said  authorities  or  such  con- 
sulate, respectively. 


XIX  — MIXED   COMMISSIONS 


110  —  When  any  foreign  petitioner  is  entitled  to  a  mixed 
commission  the  suit  shall  be  tried  at  the  United  States  consulate 
or  such  place  as  the  United  States  consul  may  direct,  and  pro- 
ceedings shall  be  conducted  as  nearly  as  may  be  as  in  suits 
between  citizens  of  the  United  States. 

111  —  Every  commissioner  nominated  by  a  foreign  authority 
must  have  his  appointment  acknowledged  and  approved  by  the 
United  States  consul  before  taking  his  seat  on  the  commission; 
and  all  objections  to  the  approval  of  the  nomination  or  appoint- 
ment of  either  commissioner  shall  be  heard  and  determined  by 
the  consul  summarily  and  without  appeal. 

112  —  The  commissioner  appointed  by  the  United  States 
consul  should  be  a  citizen  of  the  United  States,  when  practic- 
able; he  will  always  preside,  and  his  presence  is  indispensable 
throughout  the  proceedings 


Pro- 
ceed- 
ings 


Ap- 
proval ot 
foreign 
commis- 
sioner 


Con- 
sular 
commis- 
sioner to 
preside 


XX  — DESIGN   OF   THE   RULES 


The  promulgation  of  these  rules  abrogates  no  authority 
hitherto  lawfully  exercised  by  consuls  not  inconsistent  here- 
with. 


266  APPENDIX  IX 

XXI  —  CHANGES 

"Whenever,  in  the  opinion  of  the  consul,  a  change  becomes 
necessary  in  the  rules,  the  proposed  change,  with  the  reasons, 
shall  be  communicated  in  writing  to  the  minister,  and,  the 
change  approved  by  him,  be  submitted  to  the  other  consuls  and 
published  over  his  signature  before  going  into  effect. 

[Forms  and  Table  of  Costs  and  Fees,  omitted] 

[Signed]     E.  JOY  MORRIS 

Constantinople,  December  18,  1862 


-POETION  OF  LOED  CROMER'S  REPORT 
ON  EGYPT,  1906 ' 


I  now  turn  to  the  important  questions  of  criminal  and  civil 
jurisdiction. 

I  propose  that  the  jurisdiction  at  present  exercised  in  Egypt 
by  Consular  authorities  in  civil  and  criminal  affairs  shall  cease, 
pari  passu  with  the  provision  by  the  Egyptian  Government,  under 
the  powers  conferred  and  after  adopting  the  legislative  procedure 
prescribed  by  the  Treaty  which  will  have  to  be  signed  with  the 
Powers,  of  Courts  having  competence  to  deal  with  such  matters. 

I  do  not,  however,  propose  that  complete  legislative  freedom 
of  action  in  criminal  matters  should  be  conferred  jointly  on  the 
British  and  Egyptian  Governments  acting  with  the  assent  of  the 
new  [Legislative]  Council.    I  suggest  the  following  reservations: 

(a)  That  no  subject  or  protected  subject  of  any  of  the 
Treaty  Powers  shall  be  proceeded  against  for  any  offence  under 
any  procedure  which  shall  not  insure  to  him  the  right  of  having 
his  case  submitted,  before  it  is  finally  decided,  to  a  Judge  who  is 
himself  a  subject  of  one  of  those  Powers,  or  to  a  Tribunal  in 
which  the  proportion  of  members  who  are  subjects  of  those 
Powers  is  not  less  than  three-fifths. 

(b)  That  no  sentence  of  imprisonment,  or  more  severe  sen- 
tence, passed  upon  a  subject  or  protected  subject  of  any  of  those 
Powers  shall  become  enforceable,  without  the  option  of  finding 
bail,  until  the  accused  person  shall  have  had  opportunity  of  caus- 
ing his  case  to  be  submitted  to  such  Judge  or  Tribunal  as  afore- 
said. 

(c)  That  no  v-^arrant  for  the  arrest  of  any  subject  or  pro- 
tected subject  of  a  Treaty  Power  shall  be  issued  otherwise  than 
by  a  Magistrate  who  is  himself  a  subject  of  a  Treaty  Power,  or 
with  the  authorization  of  such  Magistrate. 

(d)  That  any  subject  or  protected  subject  of  a  Treaty  Power 
who  is  arrested  on  a  criminal  charge  shall  be  entitled  to  be  liber- 
ated on  bail,  or  be  brought  within  twenty-four  hours  before  a 
Magistrate  who  is  the  subject  of  a  Treaty  Power. 

(c)  That  no  search  warrants  or  similar  process,  the  execu- 
tion of  which  involves  the  entry  upon  premises  for  access  to 
which  Consular  intervention  is  necessary  under  the  Capitulations, 
shall  be  issued  otherwise  than  by  a  Magistrate  who  is  the  sub- 


»  Reports,    Egypt   No.    1,    1906    (Cd.   2817). 


268  APPENDIX  X 

ject  of  a  Treaty  Power,  or  with  the  authorization  of  such  Magis- 
trate. 

(f)  That  in  all  cases  in  which  the  execution  of  a  judgment, 
a  search  warrant,  or  other  legal  process  involves  the  entry  upon 
premises  for  access  to  which  Consular  intervention  is  necessary, 
such  execution  shall  be  carried  out  in  the  presence  and  under  the 
direction  of  a  police  officer  or  officer  of  the  Court  who  is  the 
subject  of  a  Treaty  Power. 

(gj  That  no  sentence  of  death  passed  upon  any  subject  or 
protected  subject  of  a  Treaty  Power  shall  be  carried  into  exe- 
cution until  one  calendar  month  after  the  notification  of  such 
sentence  to  the  Representative  in  Egypt  of  that  Power,  and  that 
every  such  sentence  shall  be  commuted  to  one  of  penal  servitude 
for  life  if  within  that  period  such  Representative  makes  a  re- 
quest to  that  effect. 

(h)  That  every  prison  in  which  any  subject  or  protected 
subject  of  a  Treaty  Power  is  confined  shall  at  all  reasonable 
times  be  open  to  the  inspection  of  the  Consular  authorities  of 
such  Power. 

It  appears  to  me  that,  with  these  reservations,  the  power  to 
pass  criminal  laws  applicable  to  Europeans  might  safely  be 
vested  in  the  new  [Legislative]  Council,  acting  with  the  assent 
of  the  Egyptian  and  British  Governments. 

As  regards  jurisdiction  in  civil  matters,  I  would  propose  that, 
upon  the  signature  of  a  Treaty  with  the  Powers  giving  effect 
to  the  arrangements  set  forth  in  this  report,  the  system  of 
quinquennial  periods  for  the  Mixed  Tribunals  should  cease  and 
determine,  and  that  the  present  regime  of  those  Tribunals 
should  remain  in  force  unless  and  until  it  is  altered  by  legislation 
approved  by  the  Council  and  promulgated  by  the  Egyptian  and 
British  Governments. 

It  might  be  specifically  stated  that  the  present  Judges  of  the 
Mixed  Tribunals,  who  may  desire  to  remain  in  the  service  of  the 
Egyptian  Government,  should  be  entitled  to  retain  their  posts 
and  present  salaries,  and  that  their  services  should  be  available 
in  any  Courts  which  may  in  the  future  be  established. 

A  further  point  of  much  importance  has  to  be  considered.  I 
have  already  suggested  that  a  specific  engagement  should  be 
taken  by  both  the  British  and  Egyptian  Governments  that  every 
reservation  in  favor  of  British  subjects  should  ennure  for  the 
benefit  of  the  subjects  of  other  Powers.  It  has,  however,  been 
pointed  out'  that  any  general  displacement  of  the  present  mixed 
law  by   English   law   would   secure   an   effective   preference   for 


'  Report  for  1904,  p.  94.    Note. 


LORD  CROMER'S  REPORT  269 

British  subjects  without  technically  violating  the  guarantee  to 
which  allusion  is  made  above. 

There  is  not,  indeed,  the  smallest  likelihood  that  an  attempt 
will  ever  be  made  under  British  auspices  to  effect  any  radical 
change  in  the  civil  and  criminal  laws,  which  at  present  generally 
obtain  in  Egypt,  and  which,  after  an  experience  of  thirty  years, 
have  now  taken  root  in  the  country.  Nevertheless,  some  specific 
guarantee  against  any  such  change  may  not  unreasonably  be 
demanded.  I  propose,  therefore,  that  both  the  British  and 
Egyptian  Governments  should  make  formal  declaration  to  the 
effect  that  they  have  no  intention  of  changing  the  fundamental 
principles  of  the  existing  civil  and  criminal  legislation,  which 
will  continue,  as  heretofore,  to  be  in  general  those  of  the  European 
codes,  and  more  especially  the  codes  of  the  Latin  nations,  with 
such  additions  and  modifications  as  experience  may  show  to  be 
best  suited  to  the  needs  and  conditions  of  the  country.  A  decla- 
ration of  this  sort,  coupled  with  the  fact  that  no  change  will  be 
possible  without  the  consent  of  the  majority  of  a  Council,  in 
which  what,  for  the  purposes  of  the  present  argument,  I  may 
term  the  Latin  interests  will  be  fully  represented,  will  afford  an 
effective  and  ample  guarantee  that  no  legislation  will  be  under- 
taken which  will  be  open  to  the  objection  indicated  above. 

I  should  add  that  I  would  propose  to  provide  in  the  Treaty 
that  all  Judges,  whether  engaged  in  criminal  or  civil  affairs,  who 
are  at  present  irremovable  from  their  offices,  should  continue 
to  enjoy  such  irremovability;  and,  further,  that  Judges,  who  may 
be  hereafter  appointed  to  any  superior  Court  or  Courts  which 
may  be  established  shall  likewise  be  irremovable  from  their 
offices.  The  principle  of  irremovability  should  not,  however, 
apply  to  a  Judge's  place  of  residence. 


XI— EEFEEENCE  TABLES 


1— CONSULAR    COURT    REGULATIONS' 


CHINA 


J.  W.  Davis 

P.  Parker 

R.  M.  McLane 

R.  M.  McLane 
R.  M.  McLane 
P.  Parker 

P.  Parker 

W.  B.  Reed 
S.  W.  Williams 

W.  B.  Reed 
A.  Burlingame 
A.  Burlingame 

J.   B.  Angell 
C.  Denby 


Jan.  2,  1849; 
Sept.  9,  1850 


Mar.  10,  1851; 
Mar.  1,  1852 


Dec.  5,  1854; 
Feb.  25,  1856 


Aug.  25,  1854; 
July  15,  1856 

Oct.  2,  1854; 
July  15,  1856 

Mar.  8,  1856; 
Dec.  12,  1856 


Mar.  4,  1857; 
Dec.  10,  1857 


Feb.  27,  1858; 
Dec.  27,  1858 

June  12,  1858; 
Jan.  26,  1859 


Nov.  9,  1858; 

Feb.  6,  1860 

Apr.  22,  1864; 

Dec.  4, 

Apr.  23,  1864; 

Dec.  4,  1865 


1865 


May  26,  1881; 
Mar,  22,  1882 

Date  of  promul- 
gation  not 
given ; 

Jan.   14,   1SS9 


Sen.  Ex.  Doc.  72,  31st  Cong.,  1st 
Sess.,  p.  8-19.  Procedure  and  ap- 
pointment of  clerks  and  marshals 
of  consular  courts,  fees  and  forms. 

Sen.  Ex.  Doc.  43,  32d  Cong.,  1st 
Sess.,  p.  2-3.  Control  of  seamen  on 
shore  leave,  employment  of  Chin- 
ese and  trading  with  Chinese. 

Ho.  Ex.  Doc.  32,  34th  Cong.,  1st 
Sess..  p.  3-4.  Neutral  conduct  of 
individuals.  (Published  at  the  time 
of  the  Taiping  rebellion.) 

Ho.  Ex.  Doc.  125,  34th  Cong.,  1st 
Sess.,  p.  5-11.  Collection  of  debts, 
and  procedure. 

Ho.  Ex.  Doc.  125,  34th  Cong.,  1st 
Sess.,  p.  7-15.  Collection  of  debts, 
and  procedure. 

Ho.  Ex.  Doc.  11,  34th  Cong.,  3d 
Sess.,  p.  7-8.  Exercise  of  judicial 
functions  by  vice-consuls  and  act- 
ing consuls. 

Ho.  Ex.  Doc.  9,  35th  Cong.,  1st 
Sess.,  p.  2-3.  Authority  to  hold 
court  on  board  ship  in  the  five 
ports  during  the  hostilities  be- 
tween England  and  France,  and 
China. 

Sen.  Ex.  Doc.  11,  35th  Cong.,  2d 
Sess.,  p.  1-2.  Assignments  for  the 
benefit  of  creditors. 

Sen.  Ex.  Doc.  34,  40th  Cong.,  3d 
Sess.,  p.  1-10.  Prohibition  to  navi- 
gate the  Straw-shoe  channel  of  the 
Tangtse  river. 

Sen.  Ex.  Doc.  7,  36th  Cong.,  1st 
Sess.,   p.  1-2.    Court  fees. 

Ho.  Ex.  Doc.  1,  39th  Cong.,  1st 
Sess.,  pt.  2,  p.  414-5.    Registration. 

Ho.  Ex.  Doc.  1,  39th  Cong.,  1st 
Sess.,  pt  2,  p.  415-21.  Procedure  and 
general,  annulling  earlier  decrees 
inconsistent  therewith. 

Ho.  Ex.  Doc.  213,  47th  Cong.,  1st 
Sess.,  p.  1-3.  Summons  to  ab- 
sentee defendants  in  civil  suits. 

Sen.  Ex.  Doc.  65,  50th  Cong.,  2d 
Sess.,  p.  1-4.    Court  fees. 


•  The  second  column  gives  first  the  date  of  promulgation,  second 
the  date  of  submitting  the  regulations  to  Congress.  See  supra,  p. 
43-5,  53-4. 

There  appear  to  have  been  no  regulations  for  other  countries  ex- 
cepting  Japan,    which   were   as   follows: 
C.  E.  DeLong     Nov.  16,  1870;  Sen.    Ex.    Doc.    25,    41st    Cong.,    3d 

Jan.    27,   1871         Sess.,   p.  1-39.    Procedure. 
J.  A.  Bingham    Jan.   27,   1881;  Ho.    Ex.     Doc.   1,    47th   Cong.,    1st 

Dec.    6,    1881         Sess.,  p.  690-1.    Criminal  penalties. 

The  regulations  for  Japan  ceased  to  be  of  force  July  17,  1899;  see 
supra,  p.183-8. 


REFERENCE    TABLES 


271 


C  Denby 
C.  Denby 

A.  Heard 

E.  J.  Morris 


Aug.  18,  1888; 
Jan.   14,   li 


Sept.  15,  1897; 
Dec.   15,   1897 


Sen.  Ex.  Doc.  65,  50th  Cong.,  26. 
Sess,  p.  4-6.  Permitting  judgments 
by  confession  and  prescribing 
forms  for  the  same. 

Sen.  Ex.  Doc.  32,  55th  Cong.,  2d 
Sess.  Arrests  and  rendition  of  of- 
fenders. 


KOREA 

Mar.  31,  1892;  Sen.   Ex.    Doc.   104,   52d  Cong.,   1st 

May  25,  1892     Sess.,   p.  2-31.    Procedure  and  gen- 
eral. 

TURKEY 

Dec.  18,  1862;  Sen.   Ex.   Doc.   25,   37th  Cong.,   3d 

Jan.   23,   1863      Sess.,   p.  3-17.    Procedure  and  gen- 
eral. 


2— OPINIONS  OF  ATTORNEYS-GENERAL 


Isaac  Toucey. 
Caleb  Cushlng. 
Caleb  Cushlng 
Caleb  Cushlng 
Caleb  Cushlng 
Caleb  Gushing 


Caleb  Cushlng 
Caleb  Cushlng 
J.    S.   Black 
Edward   Bates 

G.  H.  Williams 

A.  H.  Garland 

O.  W.  Chapman 
(Acting) 

W.  H.  H.  Miller 
W.  H.  H.  Miller 
P.   C.   Knox 


5  Opin.  Atty.- 
Gen.  67-9,  Jan 
31.   1849 

6  Opin.  Atty.- 
Gen.  59-60,  Jun 
28,  1853 

7  Opin.  Atty.- 
Gen.  18-32,  Nov 
4,  1854 

7  Opin.  Atty.- 
G  e  n.  186-229 
May  25,  1855 

7  Opin.  Atty.- 
Gen.  342-9,  July 
14,    1855 

7  Opin.  Atty.- 
G  e  n.  495-522, 
Sept.  19,  1875 


7  Opin. 
Gen. 
Oct.  23, 

8  Opin. 
Gen.  ,380- 

11,  1857. 

9  Opin. 
Gen. 
Mar.   16, 

10  Opin. 
Gen.  250- 

12,  1862. 


Atty.- 
565-71, 
1855 
Atty.- 
7,  Feb 

Atty.- 

294-5, 

1859 

Atty.- 

2,  May 


14  Opin.  Atty.- 
Gen.  522-4,  Feb. 
4,  1875 


18  Opin. 
Gen. 
July  6, 

19  Opin. 
Gen. 
Aug.  14 

20  Opin. 
Gen.  92- 
7,  1891 

20    Opin. 

Gen.  391 

7,  1892 
23    Opin. 

G  e  n. 

Jan.  3, 


Atty.- 

219-20, 
1885 

Atty.- 

377-81. 

,  1889      . 

Atty.- 
3,  May 

Atty.- 
-4,  May 

Atty.- 
608-14, 
1902 


Place  and  manner  of  executing 
criminal  penalties. 

Expense  of  transferring  native 
Chinese  pirates  to  Hongkong  law- 
fully payable  from  judiciary  fund. 

Authority  of  consuls  in  non- 
Christian  states  to  solemnize  mar- 
riage. 

History  of  the  missions  to  nego- 
tiate treaties  with  the  Barbary 
States,   Turkey  and  China. 

Fundamental  differences  between 
consular  authority  in  Christian  and 
non-Christian  states  explained. 

General  explanation  of  the  treaty 
of  1844  with  China  and  of  the  Act 
of  1848  with  special  reference  to 
collection  of  customs  in  China,  to 
the  appellate  jurisdiction  of  the 
minister  to  China,  and  the  legal 
competency  of  vice-consuls  to  act 
judicially. 

Jurisdiction  by  usage  in  civil 
cases  in  Turkey. 

Transfer  to  the  United  States  of 
persons  accused  of  crime  on  the 
high  seas. 

Restriction  of  the  judicial  au- 
thority of  the  commissioner  to 
China  to  the  five  ports. 

Salary  of  a  marshal  began  to  run 
from  time  of  entering  on  duties 
preliminary  to  departure  from  the 
United  States. 

Sentences  of  imprisonment  cannot 
legally  be  executed  beyond  juris- 
diction of  the  court  which  pro- 
nounced them. 

Authority  to  send  an  agent  to  try 
an  offender  in  a  barbarous  country. 

The  President  has  no  authority 
to  order  the  removal  of  a  prisoner 
from  one  prison  to  another. 

Acting-consuls  have  no  judicial 
authority. 

A  sentence  of  Imprisonment  In 
China  can  be  served  out  anywhere 
in  China. 

Oath  of  a  foreign  subject  ap- 
pointed as  marshal. 


272  APPENDIX  XI 

3  — LEGATIONS   AND   CONSULATES 


I  -  CHINA 
Peking  The  Legation 

The  Act  of  June  30,  1906,  creates  a  United  States  court  for  China. 
The  sessions  of  this  court  are  to  be  held  in  Shanghai,  Tientsin,  Canton, 
pankau,  and,  at  the  discretion  of  the  judge,  in  other  cities  where 
American  consulates  are  located. 


Amoy 

Canton 

Cheefoo 

Chungking 

Fuchau 

Hankau 

Mukden 

Nanking 

Niuchwang 

Shanghai 

Tientsin 

Tsingtau 


Consul 
Consul 
Consul 
Consul 
Consul 
Consul 
Consul 
Consul 
Consul 
Consul 
Consul 
Consul 


(class  four) 
■general  (class 
•general  (class 

(class  six) 

(class  four) 
•general  (class 
-general  (class 

(class  five) 
•general  (class 
•general  (class 
-general  (class 

(class  Ave) 


four) 
five) 


five) 
five) 

five) 
one) 
four) 


Seoua 


II  —  KOREA 

The  Legation 
Consul-general  (class  four) 


Tangier 

Casa   Blanca 
IVEogador 


III  —  MOROCCO 

The  Legation 
Consul-general  (class  six) 
Consular   agent 
Consular  agent 


Maskat 


IV  —  OMAN    (MASKAT) 
Consul  (class  nine) 


Teheran 
Tabriz 


V  —  PERSIA 

The  Legation 
Consul   (class  seven) 


Bangkok 


VI  —  SIAM 
The  Legation 


VII  — TURKEY   AND   EGYPT 

Constantinople  The  Legation 

Consul-general  (class  three) 

Athens  Diplomatic   agent 

Cairo  Agent  and  consul-general 

Aleppo  Consular   agent 

Alexandretta  Consul  (class  eight) 

Alexandria  Consular   agent 

Assioot  Consular  agent 

Bagdad  Consul  (class  nine) 

Bassorah  Consular  agent 

Beirut  Consul-general  (class  five) 

Damascus  Consular  agent 

Dardanelles  Consular   agent 

Harput  Consul  (class  seven) 

Jaffa  Consular   agent 

Jerusalem  Consul  (class  seven) 


REFERENCE  TABLES 


273 


Mersine 

Mytilene 

Port    Said 

Saloniki 

Samsoun 

Sivas 

Smyrna 

Suez 

Trebizond 

Tripoli 


Zanzibar 


Consular  agent 
Consular  agent 
Consular  agent 
Consular  agent 
Consular   agent 
Consul  (class  nine) 
Consul  (class  six) 
Consular   agent 
Consul  (class  eight) 
Consular  agent 

VIII  —  ZANZIBAR 
Consul  (class  eight) 


4— OPEN   PORTS   OF   CHINA' 


Estimated  Chinese 

Port 

Province 

Population  tf904) 

Niuchwang 

Shenking 

50,000 

Chinwangtao 

Chihli 

5,000 

Tientsin 

Chihli 

750,000 

Chifu 

Shangtung 

75,000 

Kiauchau 

Shangtung 

(Small) 

Chungking 

Szechuan 

600,000 

Changsha 

Hunan 

230,000 

Yochau 

Hunan 

20.000 

Ichang 

Hupeh 

45,000 

Shasi 

Hupeh 

80,000 

Hankau  and  "Yangtse 

Stages  " 

Hupeh 

870.000 

Kiukiang 

Kiangsi 

36.000 

Wuhu 

Anhwei 

122,000 

Nanking 

Kiangsu 

270,000 

Chinkiang 

Kiangsu 

167,000 

Shanghai 

Kiangsu 

651,000 

Suchau 

Kiangsu 

500,000 

Hangchau 

Chehkiang 

300,000 

Ningpo 

Chehkiang 

260,000 

Wenchau 

Chehkiang 

80,000 

Santuao 

Fukien 

8,000 

Fuchau 

Fukien 

624,000 

Amoy 

Fukien 

114,000 

Swatau 

Kwangtung 

48,000 

Canton 

Kwangtung 

900,000 

Kongmun  and  Kumchuk 

Kwangtung 

55,000 

Samshui   and   "West  River 

Stages  " 

Kwangtung 

5,000 

Kiungchau 

Kwangtung 

30,000 

Pakhoi 

Kwangtung 

20,000 

Wuchau 

Kwangsi 

53,000 

Lungchau 

Kwangsi 

12,000 

Mengtsz 

Yunnan 

12,000 

Szemao 

Yunnan 

9,000 

Tengyueh 

Yunnan 

11,000 

Kaulun 

Kwangtung 

(Small) 

Lappa 

Kwangtung 

(Small) 

Tatung 

Thibet 

(Small) 

In  addition  to  the  ports  named  above  the  following  are  to  be 
opened  to  trade  under  the  British  Treaty  of  September  5,  1902:  Wanhsien 
in  Szechwan,  Nganking  in  Anhwei,  and  Walchau  in  Kwangtung;  the 
following  under  the  American  treaty  and  the  Japanese  treaty,  each  of 
October  8,  1903:  Mukden,  Antung  and  Ta-tung-kau,  all  located  in 
Manchuria. 


1  Statesman's  Year-book,  1906. 


INDEX 


Abd  ul  Messih  v.  Farra,  cited, 
92  note   2. 

Aberdeen,  Lord,  on  summary 
nature  of  extraterritorial  crimi- 
nal  jurisdiction,    cited,    98   note  2. 

Absentees,    Turkish   tax   on,   136. 

Abuse  of  extraterritorial  privi- 
leges,   results    of,    89. 

Acting  consuls  have  no  judicial 
authority,  57. 

Actor  sequitur  forum  rel,  rule  of, 
151. 

Acts  of  Congress,  see  Congress, 
Acts    of. 

Adams,  R.,  Representative,  im- 
provement of  consular  jurisdic- 
tion, 86. 

Admiralty   jurisdiction,    43,   101. 

Agency  theory  of  extraterritorial 
jurisdiction,   66-7. 

Aintab,    disturbances    at,    115. 

Aix,  French  court  of  appeals  at, 
74,  151. 

Alcohol,  Turkish  internal  tax  on 
imported,   135. 

Alexandria,  municipality  of,  158 
note    2. 

Alexius  III,  chrysobulum  of  1199,  3. 

Algiers,  treaties  with,  19-20;  mili- 
tary occupation  by  France,  20; 
Mohammedan  law  retained  In, 
178;  relinquishment  of  jurisdic- 
tion in,  178;  departments  of 
France,   178. 

Aliens  in  service  of  oriental  gov- 
ernments, 86-7. 

Allegiance  of  seamen,  theories  of 
personal,    and    territorial,    87. 

American  employees  of  oriental 
governments,  86-7;  nationality, 
proof   of,    81-3;    seamen,    87. 

Ancient  usages,  effect  of  in  Tur- 
key,   15-6. 

Andronicus  II,  aurea  bulla  of  1304, 
3-4. 

Angell,  J.  B.,  on  privileges  of 
dragomans,  84;  secured  exemp- 
tion of  Chinese  converts  from 
taxes   for  pagan   festivals,   122. 

Aoki,  Viscount,  in  negotiations  for 
abrogating  extraterritorial  juris- 
diction in  Japan,   186-7. 

Appeals  from  consular  courts,  49- 
50,  58-9,  63;  under  the  British  sys- 
tem, 72:  under  the  French 
system,  74. 


Appropriation,  annual  diplomatic 
and  consular,   1905,   198  note. 

Arbitration  of  the  Cheek  claim 
against  Slam,  148  inote  1,  162. 

Armenians,  emigration  of  families 
of,  79;  indemnities  for  injuries 
to  citizens  at  times  of  disturb- 
ance, 150;  naturalization,  effect 
of,  on  rights  in  Turkey,  79,  100; 
protection  of  citizens  during  dis- 
turbances   of   1895,    117. 

Arrests,  in  order  to  try,  103;  ex- 
emption from,  59;  see  Capitula- 
tions. 

Article  IV,  treaty  of  1830  with  Tur- 
key, origin  of  differences  con- 
cerning, 23;  translations  of,  24, 
25;  concessions  proposed  and  de- 
clined, 25;  similar  language  of 
other  treaties,  26;  Secretary 
Blaine's  instructions  of  Dec.  22, 
1890,  29;  see  Criminal  jurisdiction. 

Assessors,  the  system  of,  devel- 
oped by  France,  73;  see  Associ- 
ates. 

Assignment  of  claims  by  natives 
to   foreigners,   146-7. 

Associates  to  consular  judge,  pro- 
vision for  in  the  Statutes,  47,  48; 
right  of  to  separate  in  the  course 
of  a  trial,  102. 

Asylum  not  to  be  given  native 
offenders,   103-4. 

Attorneys,  foreign,  appearing  in 
consular  courts  by  courtesy,  62. 

Audience  question  in  China,  60 
note;    in   Japan,    ibid. 

Austria,    capitulations   of  1718,   13. 

Austria-Hungary,  treaty  of  1869 
with  Japan,  17,  184. 

Avedikian,  dragoman,  protection 
of,  84  note  1. 

Bailo,  Venetian  at  Constantinople, 
13. 

Baldwin,  J.,  opinion  on  constitu- 
tionality of  consular  jurisdiction, 
65. 

Bankruptcy,  undeveloped  law  of, 
146. 

Barbarous  countries,  jurisdiction 
in,    40,    42. 

Barbary  States,  first  American 
treaties  with,  19;  treaties  now  in 
force,   20;   early  piracies  of,   7. 

Barcelona,  privileges  of  in  Egypt,  8. 


INDEX 


275 


Barclay,  T.,  negotiation  of  early 
treaties  with  the  Barbary  States, 
19. 

Bayard,  T.,  on  nationality  of  chil- 
dren of  citizens  in  Smyrna,  90; 
on  effect  of  marriage  upon  na- 
tionality, 94;  approval  of  Mr. 
Straus's  protest  against  certain 
Turkish  regulations,  115;  on  legal- 
ity of  the  Shanghai  municipal 
regulations,  171;  on  continuing 
protection  of  Americans  under 
German  military  occupation  of 
Samoa,  180;  on  a  regulation  for 
consular  courts  in  China,  limit- 
ing actions,  55  note  2;  on  nation- 
ality of  Chinese  wives  of  Ameri- 
cans, 79  note  7. 

Beale,  T.,  secured  real  property 
privileges  for  American  citizens 
in   Persia,   134. 

Beirut,  American  Medical  College, 
113-4. 

Berthemy  convention  with  China, 
119,  127. 

Bethell,    Re,   cited,   92  note  2. 

Biddle,  Capt.  J.,  negotiation  of 
treaty  of  1830  with  Turkey,  21-2. 

Bingham,  J.  A.,  declined  to  give 
opinion  in  a  case  unless  upon 
appeal,  62;  jurisdiction  of  a  de- 
serting  seaman,    87   note   3. 

Black  Sea,  privileges  in,  negotia- 
tions of  1830,  21,  22. 

Blaine,  J.,  interpretation  of  Art. 
IV  of  treaty  of  1830  with  Turkey, 
25;  opinion  on  changes  desirable 
In  American  consular  jurisdic- 
tion, 74-5. 

Bombay,  British  court  of  appeal 
at,  72. 

Borneo,  United  States  treaty  with, 
39;  British  and  Dutch  protecto- 
rates  in,    181. 

Bourse,  M.,  opinion  on  effect  of 
the  real  estate  protocol  of  1874, 
30,    132. 

Bradish,  L.,  early  treaty  negotia- 
tions of,   with  Turkey,  21. 

British  foreign  jurisdiction,  69-72; 
authorities  on,  cited,  69  note. 

Brown,  J.  P.,  correspondence  de- 
scribing jurisdiction  in  Turkey 
under  extraterritorial  treaties, 
28-9. 

Buckley,   J.,   trial  of,   64  note,   102. 

Bulgaria,  jurisdiction  in,  under  the 
treaty  of  Berlin  of  1878,  190. 

Burgess,  J.,  opinion  on  the  consti- 
tutionality of  consular  jurisdic- 
tion, 66-7. 

Burgevine,  General,  In  Taiping  re- 
bellion.   100. 

Burlingame,  A.,  initiated  a  cooper- 
ative policy  in  China,  159,  165; 
religious  toleration  under  the 
treaty  of  1868  with   China,   119. 

Byzantium,    6;    see    Constantinople. 

Cadi,  functions  of,  under  capitu- 
lations of  1535,  9;  contracts  under 
seal  of,   capitulations  of  1675,   12. 

Caisse  de  la  dette  of  Egypt,  crisis 
concerning  the  international  tri- 
bunals,  157. 

California,  early  trade  with  Japan, 
26;    former    appellate    jurisdiction 


of  the  circuit  court  of  the  United 
States  in,  49,  63;  appellate  juris- 
diction of  the  circuit  court  of 
appeals,  50. 

Canter's  case,  cited,  68  note  1. 

Canton,  duties  on  goods  in  native 
junks,  137;  foreign  settlement  at, 
165;  likin  tax  on  petroleum  at, 
139. 

Capital  offenses,  jurisdiction  of, 
48;  pardon  of  offenders  by  com- 
mutation of  sentence,  49. 

Capitulations,  origin  of  the  term, 
3;  obtained  by  Venice  in  1199,  3; 
by  Genoa  in  1304,  3;  by  Florence 
in  1445;  by  Pisa  In  1154;  by  Mar- 
seilles and  Barcelona,  7-8;  by 
France  in  1535,  8-9;  in  1569,  1604 
and  1673,  10;  In  1740,  10-1;  by  Eng- 
land in  1580  and  1675,  6-7,  11-3;  by 
Austria  in  1718,  13;  by  Russia  In 
1783;  by  Holland  in  1612;  12  note  1; 
continuing  force  of  the  capitu- 
lations, 14;  la  question  des 
capitulations,  188-92;  see  Turkey, 
treaties. 

Carpenter,  M.,  Senator,  opinion  on 
constitutionality  of  consular 
jurisdiction,   63  note  1. 

Cavass,   immunities   of,   84-5. 

Ceremonial,  see  Audience  ques- 
tion. 

Chargg  d'affaires,  whether  judi- 
cial functions  may  be  exercised 
by,  56. 

Cheek,  M.  A.,  claim  against  Slam, 
148  note  1,  162. 

Children  born  of  American  parents 
in   the  Orient,   status  of,  90-1. 

China,  adoption  of  western  law, 
193;  American  trade  with,  early 
in  the  nineteenth  century,  31-2; 
claims  against,  for  indemnities, 
147-9;  commercial  regulations 
upon  investment  of  foreign  cap- 
ital, 142;  financial  conditions  of, 
as  related  to  foreign  jurisdiction, 
147;  hong  system  of  early  trade, 
31;  Imperial  Maritime  Customs, 
137-8;  interior,  rights  of  residence 
in,  120;  joint-stock  companies, 
privileges  of,  142;  jurisdiction  of 
in  the  leased  areas,  176-7;  and  In 
Shanghai,  171;  and  in  other  for- 
eign settlements,  see  Foreign  set- 
tlements; leased  areas  of,  176-7; 
likin,  abolition  of,  138-40;  manu- 
facturing privileges  of,  142-3; 
mines,  concessions  and  regula- 
tions, 143;  mixed  cases  In,  trial 
of,  158-62;  monopolies  in,  grant- 
ing of.  to  foreign  companies 
not  permitted,  144;  native  con- 
verts, relation  of,  to  missionaries, 
121-2;  navigation  of  the  Yangtse 
river,  141;  railways,  concessions 
and  regulations,  143-4;  real  prop- 
erty in  the  open  ports.  125-6;  and 
in  the  Interior,  126-8;  and  ac- 
quisition by  special  grant,  127; 
and  by  missionary  societies  un- 
der the  American  treaty  of  1903, 
127-8;  and  irregular  methods  of 
acquiring.  126;  rule  of  lex  loci, 
97;  succession  to,  97;  religious  tol- 
eration in,  109,  118-20,  124;  relin- 
quishment   of    consular    jurisdlc- 


276 


INDEX 


tion  in  Japan,  194;  stock  com- 
panies, regulation  of,  142;  succes- 
sion to  real  property  in,  97; 
treaties  with  the  United  States, 
of  1844,  32-3;  of  1858,  34-5;  of  1868, 
119;  of  1880,  35;  of  1894,  83;  of  1903, 
35.  192,  193;  with  Great  Britain 
of  1842  and  1843,  31;  of  1858,  126; 
of  1902,  137  note  3,  142;  with 
France  of  1860,  126-7;  convention 
with  France  of  1865,  127;  with 
Japan  of  1895,  140,  142-3;  United 
States  court  for  China,  41,  43,  48, 
50,  Appendix  III-2. 

Churches,  use  of  dwelling  houses 
as.   111. 

Circuit  court  of  the  United  States 
in  California,  former  appellate 
jurisdiction  of,  49,  63;  circuit  court 
of  appeals,  ninth  judicial  circuit, 
appellate  jurisdiction  of.  50. 

Citizenship,   see  Nationality. 

Claims  against  China,  147-9; 
against  Japan,  as  set-off,  161; 
against  Siam,  arbitrated,  148  note 
1,    162;    against    Turkey,    149-50. 

Collection  of  debts  in  Turkey,  146. 

Comanos,  Vice  Consul-Genera  I.  sit- 
ting as  judge  in  Mirzan  trial,  103. 

Comity,  acts  of,  see  Friendly 
offices. 

Commerce,  power  to  regulate,  a 
ground  for  jurisdiction,  68. 

Commercial  privileges  in  China, 
140-5,  141  note  1;  in  Turkey,  145-6, 
141  note  1. 

Commisions,  mixed,  trial  by,  in 
Turkey,  151. 

Common  law,  to  be  enforced  in 
consular  courts,  43;  meaning  of 
the  term  in  relation  to  American 
foreign  jurisdiction,  51;  opinion 
of  Chief-Justice  Marshall.  52,  52 
note  1;  opinion  of  Attorney-Gen- 
eral Cushing,  52-3. 

Companies,  see  Joint-stock  compa- 
nies. 

Congo  Free  State,  Jurisdiction  in, 
39-40. 

Congress,  Acts  of,  of  Aug.  11,  1848, 
41;  of  June  20,  1860,  41;  of  July  1, 
1870,  41;  summary  of  Rev.  Stat., 
Sec.  4083-4130,  41-9;  of  April  5,  1906, 
and  of  June  30,  1906,  see  Appen- 
dix III-1-2;  the  Davis-O'Connor 
bill  for  revision  of  Rev.  Stat.,  Sec. 
4083-4130,  76;  legislation  of  1906,  77; 
annual  Diplomatic  and  Consular 
Appropriation  Act,  June  16,  1906, 
98  note  1. 

Congress  of  Paris  of  1856,  proposal 
to  revise  the  capitulations,  188. 

Constantinople,  under  Greek  em- 
perors, 36;  captured  by  the  Turks 
in  1453,  5-6;  effect  of  military 
rggime  near,  in  1887,  180;  Brit- 
ish court  of  appeal,  at  72. 

Constitutionality  of  foreign  juris- 
diction in  the  Orient,  64-9. 

Consul,  statutory  meaning  of  the 
term,  45;  immunities  of,  59;  rela- 
tions with  local  authorities,  59; 
nationality  of,  11;  relations  to 
other  officials.  45,  58-9;  vicissi- 
tudes of  con.suls  in  early  rela- 
tions with   the  Orient,   5,   6. 

Consular  courts,  what  law  enforce- 
able in,  43. 


Consular  districts,  46,  60. 

Consular  judge,  jurisdiction  of 
when  sitting  without  associates, 
46;  with  associates,  46-7;  rela- 
tions  to  executive  superiors,  57-8. 

Consular  jurisdiction.  improve- 
ment of,   desirable,  74-5,   196. 

Consular  officers,  wnom  the  term 
includes,  45,  56. 

Consulates,  districts  pertaining  to, 
60. 

Contraband,  trade  in,  in  China,  in 
1885,    102. 

Convicts,  care  of,  50,  98  note  1, 
104-7. 

Coolie  trade,  a  criminal  offense,  99. 

Cooperative  policy  in  China,  159, 
165. 

Copyrights,    140. 

Costa,   Dragoman,   S4. 

Counter  claims  in  mixed  cases,  161 

Crane,  Capt.  W.  M.,  in  negotia- 
tions with  Turkey,  21. 

Crete,  regime  of  capitulations  in, 
190. 

Crimes,  acts  indictable  under  the 
treaties,   98. 

Criminal  jurisdiction,  98-108;  under 
the  early  capitulations,  3-4,  9,  10; 
under  the  capitulations  in  favor 
of  France  of  1740,  11;  under  those 
in  favor  of  England  of  1675,  12-3! 
under  Article  IV  of  the  American 
treaty  of  1S30,  23-6;  existing  prac- 
tice, 26-7;  letters  of  Consuls 
Brown  and  Dainese  concerning 
practice  about  1850,  28-9;  in  China 
at  time  of  negotiating  the  Amer- 
ican treaty  of  1844,  33;  transfer 
of  offenders  in  China,  104;  settle- 
ment of  minor  cases  out  of  court, 
46. 

Cromer,  Lord,  Report  on  Egypt, 
158;   Appendix   X. 

Crusades,  jurisdiction  of  consuls  in 
Syria    during,    4. 

Cubans,   friendly  offices  toward,  89. 

Cushing,  C,  negotiation  of  treaty 
of  1S44  with  China,  32-3;  opinion 
upon  jurisdiction  in  Turkey,  28; 
opinion  on  meaning  of  the  term 
common  law  in  reference  to  for- 
eign jurisdiction,  51-2;  approval 
of  municipal  regulations  for  Can- 
ton.   16.5. 

Customary  rights,  see  Ancient 
usages. 

Customs,  stipulations  regarding, 
usually  contained  in  earlier  ori- 
ental treaties.  2;  settlement  of 
disputes  concerning,  in  China, 
137-40;    in   Turkey,    135. 

Cyprus,  regime  of  capitulations  in, 
190. 

Dainese,    F.,    letter    in    regard    to 

criminal    jurisdiction    in    Turkey, 

28. 
Dainese  v.  Hale,  51,  58  note  3. 
Danish    Great    Northern    Telegraph 

Company   in   China,   144-5. 
Danubian   principalities,   182-3,   190. 
Davis-O'Connor  bill,  76. 
Debts,    collection   of   in   China,    146; 

in    Turkey,    146. 
Decatur,     Commodore,      in      early 

negotiations        with        Barbary 

States,    19. 


INDEX 


?77 


De  Long,  C.  E.,  published  consu- 
lar regulations  for  Japan,  54. 

Denby,  C,  on  validity  of  marriages 
with  foreigners  in  China,  94;  on 
responsibility  of  provincial  gov- 
ernors to  protect  missionaries, 
124;  on  Chinese  law.  193-4. 

Denby,  E.,  Representative,  im- 
provement of  consular  juris- 
diction, 77. 

Department  of  State,  relation  to, 
of  consuls  when  acting  as  judges, 
58;  without  authority  to  revise  a 
consular  court  judgment,  62. 

Deportation  from  Japan,  as  a  pen- 
alty, 105-6;  for  trial  under  the 
British   system,   104. 

Desertion  of  seaman,  effect  on  his 
privileges,  87  note  3. 

Dickinson,  C.  M.,  on  collection  of 
debts  in  Turkey,   146. 

Dinkelle,  commutation  of  penalty 
of,   107. 

Diplomatic  correspondence  in  set- 
tlement of  certain  claims,  161-2. 

Districts,   consular,  60. 

Divorce,    95. 

Domicil  (dwelling)  inviolability  of, 
112,  115,  118;  (legal)  of  origin  re- 
tained,   92. 

Dragomans,  immunities  of,  84-5;  see 
Protected    persons. 

Dwight,  H.  O.,  on  missionary  book 
trade  and  schools  in  Turkey,  113 
note   2,    115    note   1. 

East  India,  portions  of  native  law 
retained,   178. 

East  India  Company,  early  jur- 
isdiction in  Japan,  69. 

Echelles  du  Levant,  origin  of  the 
term,  73. 

Egypt,  influence  of  Great  Britain 
in,  159;  international  tribunals  of, 
151-8;  their  origin,  153-5;  their 
activity,  155;  their  organization 
and  powers,  155-6;  the  crisis  of 
1880,  156-7;  of  1896,  157;  larger  ex- 
traterritorial privileges  in,  than 
in  Turkey  proper,  27;  relations  of, 
to  Turkey,  154;  judgments  against 
government  of,  156-8;  impractica- 
ble to  have  courts  in  China  like 
the   international    tribunals,    159. 

Employees  of  foreigners  in  China, 
85-6;  foreigners  serving  native 
governments,    86-7. 

England,   see  Great  Britain. 

Evarts,  W.  M.,  instructions  by, 
in  Mirzan  trial,   103. 

Execution  of  judgments.  50. 

Executive,  functions  of,  in  for- 
eign jurisdiction,  49,  56-9. 

Executive  Order  of  June  27,  1906, 
77,  Appendix  III-3. 

Exemption  from  arrest,  59;  see 
Capitulations. 

Exequatur,  under  capitulations  of 
1.535.  9:  relating  to  the  leased 
areas  in   North  China,   176-7. 

Ex  parte  O'Neil,  62. 

Expatriation,  of  Americans  in  Ori- 
ental countries,  91;  of  Turkish 
subjects,  effect  on  real  property 
rights.    133. 

Expulsion    from    Turkey,    106-7. 

Extradition,  consuls  have  no  power 
to       extradite,       104;       American 


treaties  of,  105;  British  methods 
of,  105. 
Extraterritoriality,  not  formerly 
regarded  a  disparagement  to  sov- 
ereignty, 17;  adaptions  of, 
when  introduced  into  China, 
16.  S2-3;  distinctions  between 
forms  of  in  Turkey  and 
China,  15,  161;  reasons  for  main- 
taining in  Turkey,  14,  188-92; 
stipulations  regarding,  usually 
contained  in  earlier  oriental 
treaties,    2. 

Field,    J.,    opinion    in    In   re    Ross, 

66. 

Filipino  seamen,  jurisdiction  of, 
87   note. 

Pish,  H.,  on  i-egulations  and  pro- 
cedure, 55,  95. 

Florence,  capitulations  of  1445  in 
favor  of,  5. 

Forbes  v.   Scannel,   51,  65. 

Foreign  jurisdiction,  British  Acts 
of,  69-71;  Orders  in  Council,  relat- 
ing to,  71-3;  of  France,  72-4. 

Foreign  municipalities,  French 
system  of  government  of,  72-4. 

Foreign  quarters  in  cities  of  the 
Levant,  3. 

Foreign  settlement  at  Shanghai, 
see  Shanghai;  elsewhere,  163- 
7. 

Foreigners  as  seamen,  jurisdiction 
of,    87. 

France,  capitulations  in  favor  of, 
of  1535,  8-9;  of  1569,  1604  and  1673, 
10;  of  1740,  10-1;  government  of 
foreign  municipalities,  72-4;  de- 
velopment of  assessor  system,  73; 
separate  municipality  in  Shang- 
hai, 165-6;  treaty  with  China  of 
1860,  126-7;  relinquishment  of 
jurisdiction  in  Japan,  194;  mili- 
tary occupation  of  Madagascar, 
179-80;  of  Algiers,  178;  ti'eaty  of 
1886  with  Korea.  125;  convention 
with  China  of  1865.  127;  ordinance 
of  1781,  129;  real  estate  protocol 
of  1868  with   Turkey,   130. 

Francis  I,  obtained  capitulations 
of  1535,  8-9. 

Franks,  origin  and  significance  of 
the  term.   8. 

Eraser,  H.,  in  negotiations  be- 
tween Great  Britain  and  Japan, 
leading  to  treaty  of  1894,  186. 

Frelinghuysen,  F.,  on  desirabilit-- 
of  further  legislation  on  cons;-:-^r 
jurisdiction,  74;  referred  to  Con- 
gress qviestion  of  relinquishing 
jurisdiction    in    Tunis.    181. 

French  foreign  jurisdiction,  72-4. 

Friendly  ofFices.  mutual  American 
and  British,  57,  88;  to  Chinese,  88; 
to  Cubans.  89;  to  Japanese.  88;  to 
Swiss.  88;  of  Russians  to  French 
in    China,    175. 

Fugitives  from  justice,  see  Extra- 
dition. 

Galata.  3. 

Gargiulio,    Dragoman,    80   note   2. 

Genoa,  capitulations  of  1304  in 
favor  of,  3. 

Germany,  lease  of  Kiaochow,  176; 
separate  concessions  at  the  open 
ports,  166;  jurisdiction  of  consul- 
general    of,    in   China,    56   note   1; 


278 


INDEX 


nationality  of  Cliinese  wives  of 
Germans,  79  note  7;  trial  of 
American  citizen  by  a  German 
acting  consul,  57. 

Gibraltar,  British  court  of  appeal 
at,  72. 

Great  Britain,  capitulations  of  1580 
and  1675  in  favor  of  England,  6-7, 
11-3;  Acts  of  Parliament  exam- 
ined by  a  committee  of  Congress, 
41;  foreign  jurisdiction  of,  69-72; 
treaty  with  Turkey  of  1890,  98,  135; 
with  the  United  States  and  Great 
Britain  on  Samoa,  39,  ISO;  treaty 
of  1858  with  China,  126;  real  estate 
protocol  of  1868  with  Turkey,  130; 
influence  in  Egypt,  158;  negotia- 
tions leading  to  abrogation  of 
extraterritoriality  in  Japan,  186-8; 
treaty  with  China  of  1842,  31;  of 
1843,  171;  of  1858,  126;  of  1902,  119, 
142;  colony  of  Hongkong,  164-5; 
methods  of  extradition,  105; 
treaty  of  1857  with  Persia,  18; 
rights  of  British  Jews  in  Turkey, 
80;  treaty  of  1883  with  Korea,  125. 

Greece,  extraterritorial  rights  in 
Turkey,  182;  arbitration  with 
Turkey  following  the  war  of 
1897,    189-90. 

Gresham,  T.  Q.,  treaty  of  1894  with 
Japan,  1S8. 

Gurdjian,  instructions  in  the  case 
of,  29. 

Hankow,   separate  German  conces- 
sion   at,    166. 
Hankow-Canton    railway,    144. 
Hannen,      Sir     Nicholas,     arbitra- 
tion   by,    162. 
Harbor      regulations,      force      of, 

98-9. 
Harpoot,     property     destroyed     at, 

116. 
Harris,    T.,    negotiation   of   treaties 

with  Japan  and  Siam,  37-8;  hon- 
ored   in    separate    audience,    58 

note   2. 
Hart,     Sir     R.,     administration     of 

Imperial  Chinese   Customs,   137. 
Hawaii,     no    extraterritoriality     in, 

.39,  194;  relinquishment  of  jurisdic- 
tion in  Japan.  194. 
Hawaii  v.  Mankichi,  cited,  68  note  1. 
Hay,    J.,    telegram    of   July   3,    1900, 

relating  to  China,  149. 
Heard,    A.,    regulations    for    Korea, 

54. 
Hill.    Senator   (of  Georgia)   on  con- 
stitutionality   of    jurisdiction,    64 

note  1. 
Hoar,   Senator,   on  constitutionality 

of  jurisdiction,  64  note  1. 
Hong  system  in  China,  31. 
Hongkong,    British    supreme    court 

of.    72;    extradition    between,    and 

China,  105,  164-5. 
Humphreys,  Col.  David,  19. 

Imperial  Japanese  Govt.   v.   P.  and 

O.  Steamship  Co.,  161. 
Imprisonment,   for  crime,  where  to 

be  made,   107. 
Indemnities,    paid    by    China,    147-9; 

by    Turkey,    116-7.    148-50;    by    the 

United  States,  162. 


Inheritance    of    personal    property, 
95;  see  Succession. 

Inland    waters    of    China,    naviga- 
tion of,  141-2. 

Inouye,     Count,     in    Tokio    confer- 
ences of  1886,   185, 

In  re  Ross,  51,  66,  87,  103;  see  Ross. 

In  re  Stupp,  64  note  2. 

Insurrection,  capital  offense  to  join 
in,   100. 

International  law,  effect  of  in  con- 
sular courts,  50. 

International    tribunals    of    Egrypt, 
see  Egypt. 

Interpreters,    see    Dragomans,    and- 
Appropriation. 

Ionian   Islands,   jurisdiction  in,    190. 

Italian    cities,    privileges    of   in    the 
Levant,   2-5. 

Ito,  Marquis,  in  embassy  of  1872  to 
the  West,  184. 

Iwakura,     Prince,     in     embassy    of 
1872  to  the  West,  184. 


Jackson,   trial  of,  60  note  2. 

Japan,  Americans  residing  in, 
urged  further  legislation  on  ex- 
traterritorial jurisdiction,  75  note 
1;  deportation  from,  of  criminal 
offenders,  105-6;  obligation  of  for- 
eigners to  comply  with  local  po- 
lice regulations,  99;  early  Amer- 
ican relations  with,  35-8;  growth 
of  modern  political  institutions, 
183-5;  international  tribunals  for, 
proposed  and  declined,  158;  nego- 
tiations leading  to  relinquish- 
ment of  extraterritorial  privi- 
leges in,  185-8;  basis  of  judicial 
autonomy,  186-7;  jurisdiction  of, 
retained  in  leased  areas  of  China, 
177;  separate  concessions  in  cer- 
tain open  ports  of  Chir.a,  167:  r°p.l 
property  interests,  foreigners  not 
permitted  to  acquire,  125;  growtn 
of  usages  in  connection  with 
extraterritoriality,  15  note  2; 
riglits  of  manufacturing  in 
China,   140. 

Japan  v.  Pacific  Mail  Steamship 
Co.,  63  note  3. 

Japan  v.  P.  and  O.  Steamship 
Co.,    161. 

Japanese  spies  at  Shanghai,  trial 
of,    174-5. 

Jews,  in  Turkey,  maltreatment  of, 
SO-1;  real  estate  privileges,  SO-1, 
133;  restrictions  upon  travel,  80-1; 
in  Persia,  protection  by  govern- 
ment of,   118. 

Joint-stock  companies,  jurisdic- 
tion of,  86;  regulation  of,  in 
China,    142;    in    Turkey,    145. 

Judgments,  execution  of,  50;  see 
Associates. 

Judicial  functions,  offices  to  which 
pertain,  45;  not  to  be  exercised  by 
'acting'  consuls,  57. 

Jury,  claim  of  right  to  trial  before, 
66,   102. 


Kiaochow,  jurisdiction  in.  176. 

Kimberley,  Lord,  treaty  of  1894  be- 
tween Great  Britain  and  Japan, 
187. 


INDEX 


279 


Kirchwey,  G.  W.,  opinion  as  to 
jurisdiction  of  foreign  seamen, 
87    note    3. 

Kongo,   see  Congo. 

Koran,  influence  of,  on  political 
institutions  in  Turkey,   191. 

Korea,  treatv  of  1882  with  the 
United  States,  38-9,  192;  mission- 
ary privileges  in,  124-5;  treaty  of 
1886  with  France,  125;  of  1883  with 
Great    Britain,    125. 

Kowloon,  British,  jurisdiction  in, 
176. 

Kurino,  S.,  treaty  of  1894  between 
the  United  States  and  Japan,  188. 

Kutschuk    Kainardji,    peace    of,    14. 

Land,    see    Real    property. 

Land  regulations,  at  Canton,  165; 
at  Shanghai,  167-70;  at  Hankow 
and  Tientsin,  166;  see  Open  ports. 

Leased  areas  in  China,  jurisdiction 
suspended  in,  176-7;  claim  of 
Japan  to  retain  jurisdiction,  177. 

Legislation,  see  Congress,  Acts  of; 
and  Regulations;  and  France; 
and  Great  Britain. 

Lew  Chew  Islands,  treaty  of  1854 
with,    37. 

Lex  loci,  rule  of  as  to  real  prop- 
erty,  97,   128. 

Li  Hung  Chang,  aid  in  negotiation 
of  treaty  with  Korea  of  1882,  38; 
military  escort  of,  not  admitted 
to  the  Shanghai  foreign  settle- 
ment,  171  note  3. 

Lodge,  H.  C,  Senator,  improve- 
ment of  consular  jurisdiction,   77. 

Macao,    Portuguese   colony   of,    164, 

Macdonald  v.  Anderson,  97,  123 
note  2. 

Madagascar  treaties  of  1867  and 
1881,  38;  became  a  French  colony 
and  jurisdiction  in,  relinquished 
179-80;  effect  of  military  occupa- 
tion on  jurisdiction,  179;  native 
law   and    courts    in.    178-9. 

Mahoney  v.   U.   S.,   cited,  20  note  2. 

Malta.  Turkish  consular  jurisdic- 
tion in,  under  British  treaty  of 
1809.  18;  British  court  of  appeal 
at.  72. 

Maltass  v.  Maltass,  cited,  92 
note  2. 

Manchuria,  effect  of  occupation  of, 
180. 

Manufacture  in  China  by  foreign- 
ers, rights  of,  142-3;  taxation  of, 
140;  mission  stations  not  to  en- 
gage in,  121. 

Marash,  invasion  of  domiciliary 
rights  at,  112,  115;  property  de- 
stroyed at,   ii6. 

Marriage,  92-4;  solemnization  of, 
according  to  the  lex  loci,  93-4; 
consuls  not  to  issue  licenses  to 
marry,  93;  consular  certification 
of,  93;  with  foreigners,  effect  on 
nationality,    94-5. 

Marseilles,  privileges  secured  by, 
in    Egypt,    7-8. 

Marshals  of  consular  courts,  98; 
annual  appropriation  providing, 
98  note  1;  execution  of  judgments 
by,     50;     justiciable     in     consular 


courts,  62-3;  office  in  China  under 
Rev.  Stat.,  Sec.  4111,  abolished,  50. 

Marshall,  J.,  on  meaning  of  the 
term  common  law  under  federal 
jurisdiction,  51-2,  52  note  1. 

Marsovan  College  property  of 
destroyed,   116. 

Martin,  W.  A.  P.,  assistance  as 
interpreter,  treaty  of  1858  with 
China,   34  note  1. 

Maskat,   treaty  of  1833  with,  20. 

Matrimonial  causes,   92-5. 

Mavroyeni  Bev,  interiiretation  of 
Article  IV  of  the  treaty  of  1830 
with   Turkey,    25. 

Maynard,  H.,  on  method  of  sol- 
emnization of  marriage  between 
foreigners  in  Persia,  94. 

McCondrill,   trial   of.    87   note   3. 

McLane,  R.  M.,  regulations  regard- 
ing neutrality  in  China,  101. 

Medicine,  licenses  of  graduates  In, 
in   Turkey,   113. 

Meiklejohn  v.  Gring,  54  note  3,  62 
note  1. 

Mexico,  relinquishment  of  juris- 
diction   in    Japan,    194. 

Military  occupation,  effect  of,  on 
jurisdiction,  in  Madagascar,  179- 
80;  in  Samoa,  180;  in  Turkey,  180. 

Military  service  for  foreign 
power,  effect  on  jurisdiction, 
85,    101. 

Mines  in  China,  concessions  and 
regulations,  143. 

Minors,  nationality  of  children  of 
foreigners  in  oriental  countries, 
90-1. 

Minister,  significance  of  the  term 
in  the  statutes,  45,  56;  jurisdiction 
of,  48,  62. 

Mirzan,  trial  of.  103;  commutation 
of  penalty  of,  107. 

Missionaries,  108-25;  effect  of  pro- 
longed residence  in  the  Orient 
upon  nationality  of.  90-1;  and  ef- 
fect of,  on  nationality  of  children 
of,  90-1;  non-religious  policy  of 
the  United  States,  108-10;  citation 
of  correspondence  relating  to 
rights  of,  110  note  1;  rights  in  the 
interior  of  China,  120-1;  of  Tur- 
key, 111;  domiciliary  rights  of,  in 
Turkey,  112;  real  property  rights 
of.  in  China,  127-8;  in  Turkey, 
111-2;  real  property  rights  ac- 
quired in  name  of  native  not 
easily  protected  in  Turkey,  112; 
in  China,  121;  book  trade  of,  in 
Turkev.  114-5,  115  note  1;  schools 
of  in  China,  121;  in  Turkey,  111-3. 
113  note  2;  native  converts  and 
helpers,  relations  with,  in  Tur- 
key, 115;  in  China.  121-2:  use  of 
dwelling  houses  as  churches  anci 
schools,  111;  privileges  in  China 
do  not  include  rights  of  pursuing 
commerce  or  industry.  121;  re- 
sponsibility of  provincial  gov- 
ernors of  China  to  protect.  123-4; 
in  Korea,  124-5;  in  Siam,  125; 
see    Religious    toleration. 

Mitsu-Bishi  Mall  Steamship  Co.  v. 
Pacific  Mail  Steamship  Co.,  63 
note  3. 

Mixed  cases,  jurisdiction  of.  In 
Turkey,    151-3,    161;    in    China,    35, 


280 


INDEX 


156-60,  161;  between  foreigners  of 
different  nationalities,  160-1;  dip- 
lomatic correspondence  in  cases 
of  grave  consequences,  161-2; 
arbitration  of  the  Cheek  claim 
against  Siam,  148  note  1,  162;  un- 
der the  capitulations,  3,  4,  10,  11; 
in   Persia.    45:    see   Egypt. 

Mob  violence,  redress  for  injuries 
by,  116-T,  148-50,  162. 

Moham.medan  law,  retention  of 
portions  of,  in  Algiers,  178;  in 
East  India,  178;  in  Madagascar, 
17S-9;    in   Turkey,    191. 

Monopolies,  in  China,  granting  to 
foreign  companies  not  permitted, 
144;.  petroleum  warehouses  in 
Turkey,   145. 

Morgan,  Senator  J.  T.,  improve- 
ment of  consular  jurisdiction,   77. 

Morocco,  treaties  with,  19-20;  con- 
vention of  tlie  powers  of  1880  re- 
lating to  proteges,  20;  influence 
of    France   in,    20. 

Morris.  E.  J.,  interpretation  of 
Art.  IV  of  treaty  of  1830  with 
Turkey,    23. 

Most-favored-nation  clause,  effect 
of  on  extraterritorial  privileges, 
16-7;  effect  of  Austro-Hungarian 
treaty  of  1869  with  Japan,  17; 
British  jurisdiction  under  such  a 
clause  in  a  treaty  of  1857  with 
Persia,   17. 

■NTulk   lands,   129. 

Municipalities,  foreign,  French 
system  of,  73;  in  China,  163-7;  see 
Shanghai. 

Murder,  death  penalty  for,  com- 
muted,  107-8. 

Ivlu.scat,  see  Maskat. 


Nationality,  78-91;  scope  of  the 
term  in  foreign  jurisdiction,  78; 
see  Naturalization,  Protected 
persons,  Passports,  Dragomans, 
Seamen,  Friendly  offices.  Expa- 
triation. 

Native  converts,  protection  of,  86, 
121-2. 

Native   teachers,   115. 

Native  officials,  vis6  of  passports 
by,    82. 

Naturalization,  78-80;  equal  rights 
of  naturalized  with  native  citi- 
zens, 78-9;  policy  of  Turkey 
against  unauthorized,  79;  British 
Naturalization  Act  of  1870,  79; 
rights  of  families  of  naturalized 
husbands  or  fathers,  79;  defec- 
tive,  SO. 

Navigation  of  inland  waters,  141. 

Navoni.  N.,  Dragoman,  treaty  of 
1830,    22. 

Nee  Chang  Mow  v.  George  and 
George,   63. 

Neutrality,  regulations  to  prevent 
abuse  of  in  China,  101;  of  Shang- 
hai,   172,    174-5. 

New  York  Life  Insurance  Co., 
privileges  of  in  Turkey,  145. 

Nubar  Pasha,  origin  of  tlie  inter- 
national tribunals  of  Egypt, 
154-5. 


Offenses,  criminal,  97-108;  political, 
100-2,  106-7;  under  treaties  of 
extraterritoriality,    98-9. 

OfTiey,  D.,  in  early  negotiations 
with    Turkey,    21. 

Okuma,  Count,  negotiations  with 
Great  Britain  for  abrogation  of 
extraterritoriality    in    Japan,    186. 

Olney,  R.,  on  responsibility  of  the 
Turkish  government  for  acts  of 
revolutionaries,  116-7;  on  militarj' 
occupation  of  Madagascar  as  In- 
sufHcient  ground  for  cessation  of 
consular  jurisdiction,    179. 

O'Neil,   Ex  parte,  62. 

Open  ports  of  China,  31,  35,  163, 
Appendix    XI-4. 

Oriental  domicil,  not  acquired  by 
westerners,    92. 

Ottoman   Empire,   see  Turkey. 

Pardons,  power  to  issue  vested  in 
the  President,  107;  instances  of 
commutation  of  death  penalties, 
107-8. 

Parker,  P.,  inspection  of  consul- 
ates, 60  note  1;  court  held  by, 
at  Macao,  54  note  4. 

Passports,  81-2;  teskerehs,  81; 
travel  certificates,  82;  vise  by  na- 
tive officials,  82;  under  the  capit- 
ulations of  1740,  11;  under  the 
capitulations   of   1783,    14. 

Patents,    140. 

Peking,   legation  guards,   85  note  3. 

Penalties,   place  of  serving,   107. 

Pera,    see    Galata. 

Perry,  Commodore,  treaties  with 
Japan  and   Lew  Chew,  36-7. 

Persia,  treatv  of  1856  with  the 
United  States;  of  1828  with  Rus- 
sia, 17;  of  1857  with  Great  Britain, 
17;  convention  of  1875  with  Tur- 
key, 18;  mixed  cases  in,  trial  of, 
45;  missionary  privileges  in,  118; 
asylum  in,  customary  rights  of, 
118;  real  property  rights  in,  118, 
134. 

Personal  allegiance,  theory  of, 
17-18,  66-7. 

Personal  property,  inheritance  of, 
95-6. 

Petroleum,  likin  in  China,  139; 
warehouse  monopolies  in  Turkey, 
145. 

Petty  offenses,  98,  108. 

Pigeon  V.   Issavardens,   cited,   151. 
note    1. 

Ping-On  V.   Blethen,  63. 

Pisa,  capitulations  of  1154  in  favor 
of,   5. 

Police  regulations,  local,  effect  of, 
98-9. 

Political   offenses,   100,   106,   172-6. 

Port  Arthur,  jurisdiction  in,  176-7. 

Porter,  Commodore  D.,  ratification 
of  treaty  of  1830  with  Turkey,  23. 

Portugal,  colony  at  Macao,  164; 
treaty  of  1843  with  Turkey,   26. 

Postal  privileges,  in  Turkey,  145-6; 
in   China,    146. 

Potter  V.  Insurance  Co.,  cited,  51 
note    1. 

Pradier-Fod§re,  P.,  on  existing 
practice  in  criminal  jurisdiction 
In  Turkey,  27  note  1. 


INDEX 


281 


President  of  the  United  States, 
power  to  pardon,  criminal  of- 
fenders, 49;  instances  of  com- 
mutation  of  sentences,   107. 

Press,  rights  of,  in  Turkej',  114-5; 
Supao  ease  in  Shangliai,  172-4. 

Prisons,  need  of  in  Cliina,  35  note 
1;  authority  to  provide,  49;  use 
of  local  prisons,  98;  annual  ap- 
propriation for  rent  and  keeping 
of,   98  note   1. 

Privileges,  commercial,  140-50;  see 
Missionaries,    Real    property. 

Privy  Council,  British,  appeal  to, 
72. 

Procedure,  regulations  of,  issued 
by  ministers,  54;  in  trial  of  crimi- 
nal  offenders,    102-3. 

Progress  of  oriental  nations,  1-2, 
195-6;   of  Japan,   1S3-S. 

Protected  persons,  restrictions  of 
the  protege  system  in  the  Le- 
vant, 11,  12.  83-5;  dragomans,  84; 
Chinese  employees,  85-6;  foreign- 
ers in  the  employ  of  native  gov- 
ernm.^nts,  86-7;  strict  rule  of 
nationality  in  China,  16;  see  Sea- 
men, Friendly  offices.  Native 
converts.  Native  teachers. 

Protectorates,  jurisdiction  under, 
180-2. 

Protggg  system  in  the  Levant, 
83-5;  no  similar  system  in  China, 
89 

Protocol,  real  estate  of  1874,  30-1, 
131-3. 

Quarantine  regulations  in  Japan, 
effect  of,  99;  Sheppard,  E.  T.,  on, 
99  note  1. 

Railways,  concessions  and  regu- 
lations, in  China,  143;  in  Turkey, 
133,    141    note    1. 

Rasmussen  v.  U.  S.,  cited,  68 
note   1. 

Real  property  rights,  in  China, 
119-21;  concessions  at  the  open 
ports,  125-6;  undesirable  methods 
of  acquiring,  126;  interpretation 
of  the  French  treaty  with  China 
of  1S60.  126-7;  in  Turkey,  128-34; 
Turkish  law  of,  129-33;  former 
claim  of  jurisdiction  over  holders 
of,  129;  rescript  of  1867,  130;  pro- 
tocol of  1874,  131-2;  appeals  from 
decisions  in  Turkish  courts,  133-4; 
privileges  in  Japan  restricted  to 
renting  in  open  ports,  128;  privi- 
leges in  Persia,  134;  succession  to 
real  property,  96-7;  lex  loci  to  be 
applied,   97,   128. 

Re  Eethell,   cited,  92  note  2. 

Reciprocity,  in  granting  extrater- 
ritoriality, 18;  in  relinquishing 
jurisdiction    in    protectorates,    182. 

Reed,  W.  B.,  treaties  of  1857,  1858, 
with   China,   34. 

Referees,  settlement  by  decision 
of,    46. 

Registration  of  citizens  and  pro- 
teges.   S3. 

R6glement  d'organisation  judi- 
ciaire,    156 

Regulations  issued  by  the  minis- 
ters, statutory  provisions  for, 
43-5;    to  be  laid  before   Congress, 


44;  nature  of  those  that  have 
been  issued,  54;  opinion  of  Secre- 
tary Fish  on  restricting  them  to 
procedure,  55,  95. 

Reid's  case,  legality  of  Shanghai 
municipal   ordinances,    170-1. 

Reis  Effendi,  negotiation  of  treaty 
of  1830  with  Turkey.   22-3. 

Religious  toleration,  in  China,  109, 
118-20,  124;  in  Turkey.  109-11;  early 
Moslem    intolerance,    5-7. 

Relinquishment  of  jurisdiction,  178- 
96;  treaty  of  1882  with  Korea.  39, 
192;    In   Siam,   193. 

Residence  in  interior.  111,  120;  ef- 
fect of  prolonged,  in  Orient,  on 
nationalitv,    90-1. 

Revised  Statutes,  Sec.  4083-4130, 
summary  of,   41-50. 

Rhind,  C,  negotiation  of  treaty 
of  1830  with  Turkey,  21-3. 

Roberts,    E..    Captain,    20. 

Rockhill,  W.  W.,  on  responsibility 
of  Chinese  provincial  governors 
for  protection.  123-4;  plenipoten- 
tiary in  negotiations  of  1900  at 
Peking,    149. 

Roman  law,  adaptations  of,  in 
early  capitulations,   3  note  1. 

Ross,  In  re,  51,  66,  87,  87  note  3, 
103;   see   Ross. 

Ross,  trial  of  at  Yokohama,  61; 
commutation  of  penalty  of,  107. 

Roumania,  relinquishment  of  ju- 
risdiction in,  1S2;  relations  with 
Turkey,    190. 

Rules  of  1868  for  settlement  of  cus- 
toms disputes  in  China,  137;  of 
1902,    same,    137-8. 

Russia,  capitulations  of  1783  in 
favor  of,  13-4;  early  privileges  in 
China,  15,  33;  friendly  assistance 
in  negotiating  treaty  of  1830  with 
Turkey,  21;  treaty  of  1S29  with 
Turkey  granting  criminal  juris- 
diction, 26;  cooperation  in  China 
in  1858,  34;  lease  of  Port  Arthur, 
176. 

Saigon,  French  court  of  appeal  at, 
74. 

Salisbury,  Marquis  of.  negotia- 
tions for  abrogation  of  extrater- 
ritoriality in  Japan,  1S6-7;  con- 
tinuance of  international  tribu- 
nals of  Egvpt,  1.58. 

Salonica,  rights  of  a  dragoman  at, 
84. 

Samoa,  treaty  of  1878  with,  39;  ef- 
fect of  German  occupation  on 
jurisdiction  in,  180;  partition  of 
the  islands,  39;  relinquishment  of 
jurisdiction  in  certain   islands.   39. 

Samos,  rggime  of  the  capitulations 
in,    190. 

Saracen  caliphs,  capitulations 
granted   by,   4-5. 

Shabbenders,  rights  of  Turkish 
in  Austria,  13;   in   Malta,  18. 

Schools,  missionary  in  China,  121; 
in  Turkey,  dwelling  houses  used 
as,  111-2;  regulations  of  Turkish 
government  for,  112-3;  H.  O. 
Dwight  on,  113  note  2;  licenses 
of  graduates  in  medicine,  113-4; 
see  Native  converts.  Native 
teachers.  Missionaries. 


282 


INDEX 


Schufeldt,  Commodore,  negotiation 
of  treaty  of  1882  with  Korea,  38. 

Seumen,  foreigners  engaged  on 
American   sliips,   87. 

Secretary  of  legation,  whether 
authorized  to  exercise  judicial 
authority,  56.  „  .   ,       ,   ^■ 

Secretary  of  State,  official  relation 
to  Consuls  in  their  judicial 
functions,  58;  judicial  author- 
ity when  there  is  no  minister 
to    a    particular    country,    45,    58. 

Secretary  of  State,  British,  rela- 
tion to  foreign  jurisdiction,  70. 

Secretary  of  State  v.  Charles- 
worth  Pilling  Co.,  128  note  2. 

Servia,  treaty  with,  182-3;  relin- 
quishment of  jurisdiction  in, 
182-3;  relations  with  Turkey,  190; 
relinquishment  of  jurisdiction  in 
Turkey,    194-5. 

Set-off,  allowable  in  mixed  cases, 
161;  but  not  against  an  oriental 
government,  161. 

Settlements,   Foreign,   3,  73,  163-76. 

Seward,  G.  F.,  issue  of  regulations 
of  1863  for  China,  54;  opinion  on 
legality  of  allowing  associates  to 
separate  during  a  trial.  102; 
propositions  at  conference  of  18(9 
as  to  improvement  of  con.sular 
jurisdiction  adopted,  159-60; 
Shanghai  municipal  regulations, 
168  note  2.  ...... 

Shanghai,  foreign  municipality  at, 
165-76;  growth  of  the  city,  167,  170 
note  1;  origin  of  the  municipality, 
167-8;  land  regulations  of  1854, 
167-8;  of  1866.  168-70;  analysis  of 
the  i-egulations  of  1866,  169-70; 
legal  force  of  the  regulations, 
170;  Chinese  or  mixed  court  in, 
172;  neutrality  of,  172,  174-5;  Brit- 
ish court  of  appeal  at,  72. 

Sheppard,  E.  T..  on  obligations  of 
foreigners  under  the  law  of 
Japan,   99  note  1. 

Ships,  jurisdiction  of,  in  oriental 
ports,  43;  sale  of,  during  war  of 
1885    in    China,    101. 

Siam,  treaties  of  1833  and  1856  with 
the  United  States,  38:  privileges 
of  missionaries  in.  125;  arbitra- 
tion of  the  Cheek  claim  against, 
148  note  1,  162;  recodification  of 
laws  of,  193. 

Smuggling,    penalties   for,    138. 

Smyrna,  early  rights  of  citizens 
of  Genoa  in.  4;  Messrs.  Rhind 
and  OfRey  at,  21,  22;  rights  of  a 
dragoman  at,  84  note  1;  effect  on 
nationality,  of  prolonged  resi- 
dence   in,    91. 

Sovereignty,  growth  of  territorial 
conception  of,  66-7;  oriental, 
conceptions    of.    17-8. 

Spain,  early  reciprocity  of  juris- 
dictional privileges  with  Turkey 
and    Tripoli.    18. 

Spheres  of  influence,  native  juris- 
diction   in,    176-7,    180-2. 

Spooner.  Senator,  improvement  of 
consular  jurisdiction,  77. 

Spies,  trial  of  Japanese  at  Shang- 
hai,   174-6. 

State  Department,  see  Department 
of  State. 


Steamer  Spark  v.  Lee  Choi  Chum, 
63. 

Straits  Settlements,  British  court 
of  appeal  at,  72. 

Straus,  O.,  protection  of  privileges 
of  American  Jews  In  Turkey, 
80-1;  maintenance  of  the  privi- 
leges of  missionary  schools,  113; 
and  of  the  missionary  book 
trade,  114-5;  customs  franchise 
for  mission  schools  continued, 
136;  indemnities  obtained  for 
property  destroyed  during  Arme- 
nian  disturbances.    150. 

Stupp,  In  re,  cited,  64  note  2. 

Succession  to  real  property,   96-7. 

Suleiman,  Sultan,  capitulations  of 
1535,  8. 

Sultans,   early  adulation  of,  6-7. 

Summons,  service  of,  50,  103-4.  See 
the  Appendix  IV-2,  Consular 
Court    Regulations,    China. 

Supao   case  at  Shanghai,   172-4. 

Swiss  citizens,  friendly  offices 
toward,  in  the  Levant,  88-9,  89 
note    1. 

Tarsus,  disturbances  at,  in  1895, 
112. 

Taxation.  134-40;  customs  in  Tur- 
key, 134-5;  internal  taxes  in  Tur- 
key, 135-7;  on  alcohol,  135;  on 
petroleum,  135-6;  exemption  of 
materials  for  schools,  136; 
schools,  136;  real  estate,  136;  on 
absentees,  133;  Imperial  Mari- 
time Customs  of  China,  137;  cus- 
toms rules  of  1S6S  and  1902,  1L7-8; 
the  inland  tax,  likin,  138-40; 
abolition  of  likin,  139-40;  of  manu- 
factures,   140. 

Tazaymon  v.   Twombly,  63. 

Telegraph  Company-,  Danish  Great 
Northern,    in  China,   144-5. 

Teskerehs,  Turkish,  81-2,  135. 

Tidjaret,    Turkish   court,   152-3. 

Tientsin,    land    concessions    at,    166, 

167- 

Tonga,  treaty  of  1886  with,  31; 
jurisdiction  relinquished  in.  181- 
2,  182  note  1. 

Tootal's  trusts.  Re,  cited,  92  note  2. 

Torture  of  natives  in  mixed 
cases  disallowed,   161  note  4. 

Travel  certificates  in  China,  82. 

Treaties,  characteristic  features  of, 
with  oriental  governments,  2; 
constitutionality  of  foreign  juris- 
diction, under  power  to  make 
treaties,  68;  acts  named  in  as 
indictable  offenses,  98,  99;  see 
names   of   countries. 

Treaty   ports,    see   Open   ports. 

Trespa.ssing,  in  interior,  complaints 
of,  99. 

Tripoli,   treaties  with,  19-20. 

Tsi-Yeng,  Prince,  negotiation  of 
treaty  of  1844  with  the  United 
States     32. 

Tunis,  treaty  with,  20;  French  pro- 
tectorate of,  20,  181;  jurisdiction 
relinquished    in,    20,    181. 

Turkev,  abrogation  of  extraterri- 
torial treaties  sought  by,  188-92; 
arbitration  with  Greece  on  con- 
tinuing extraterritoriality  after 
the  war  of  1897,  189-90;  book  trade 


INDEX 


283 


of  missionaries  in,  114-5;  claims 
against,  for  indemnities,  150; 
claims  against  estates  of  foreign- 
ers deceased  in,  95;  commercial 
privileges  in,  145;  disallowance  of 
certain  regulations  affecting 
treaty  rights,  110-1;  exclusion  or 
expulsion  of  criminal  or  political 
offenders,  106-7;  financial  condi- 
tion of  the  government,  relation 
of,  to  continuance  of  extrater- 
ritoriality, 147;  law  of,  153,  191-2; 
martial  law  enforced  about  Con- 
stantinople In  1877,  180;  mixed 
cases  in,  jurisdiction  of,  151-3; 
Mohammedan  law  in,  191;  na- 
tionality, law  of,  of  1869,  79,  133; 
present  administration  of  justice 
in,  191-2;  railways  in,  133.  141 
note  1;  real  property  privileges 
in,  129-34;  before  the  rescript  of 
1867,  129-30,  133;  nature  and  origin 
of  the  rescript,  129-31;  protocol 
of  1874  with  the  United  States, 
131-2;  effect  of  the  protocol  on 
jurisdiction,  132-3;  rights  of  ex- 
patriated Turks,  133;  of  Jews  m 
Palestine,  133;  right  to  appeal  in 
realty  cases.  134;  succession  to 
real  property,  96-7;  religious  in- 
tolerance in  early  relations  with 
Europeans,  5-7;  religious  tolera- 
tion in  modern  Turkey,  109-11; 
residence  in  the  interior,  111; 
school  regulations,  112-4;  taxa- 
tion, customs,  134-5;  internal, 
135-6;  treaties,  with  the  United 
States,  of  1830,  20-9;  of  1862,  29; 
convention  for  extradition,  30; 
real  estate  protocol  of  1874,  30-1; 
convention  with  Germany  of  1890, 
98,  135;  convention  with  Persia  of 
1875,  18;  real  estate  protocol  with 
France  of  1868,  130;  with  Great 
Britain  of  1868,  130;  with  the 
United  States,  131-3;  treaty  of 
1855  with  Greece,  189;  relinquish- 
ment of  jurisdiction  in  Servia, 
194-5. 


United  States,  commercial  privi- 
leges in  China,  policy  regarding, 
143-5;  and  in  Turkey,  145;  Stat- 
utes,  41-68;    treaties,   19-40. 

United  States  v.  Blasingame, 
cited,  54  note  1;  v.  Dorr,  67  cited, 
note  1;  v.  Fullert,  cited,  54  note  1, 
60,  87  note  3;  v.  Maid,  cited  54 
note  1;  v.  Mosby,  cited,  56  note  1; 
v.   Ross,  50,   60,  65,  87,   103. 

Usages,  effect  of  in  Turkey,  15-6; 
and  China,  15-6;  growth  of,  In 
Japan,  15  note  2. 

Vacouf  lands,  129. 

Van  Dyck,  E.,  cited  on  Turkish 
real  property  law,  132  note  1. 

Venice,  capitulations  of  1199  in 
favor  of,  3. 

Venue,  no  change  of  permitted,  61. 

Vessels,  see  Ships. 

Villeneuve,  negotiation  of  capitula- 
tions of  1740,  10. 

War,  effect  of  on,  jurisdiction, 
179-80. 

Weihaiwei,    lease   of,    176. 

Wertheimer,  v.  Hoefflich,  61. 

Wife,  nationality  by  marriage,  79 
note   7,    94. 

Wills,   95-7. 

Winn  V.  Hill,  61,  62. 

Witnesses,  compulsory  attendance 
of,  see  the  Appendix,  Consu- 
lar   Court    Regulations. 

Women,  nationality  of  married, 
79,    94. 

Yangtse,  regulations  for  naviga- 
tion of,   141. 

Yassakdjis,    84-5. 

Yenomoto  Rukubie  v.  Pacific  Mail 
Steamship  Co.,  63  note  3. 

Zanzibar,  treaty  of  1886  with,  20; 
protectorates  of  portions  of,  20, 
181;  relinciuishment  of  jurisdiction 
in,  20,  181. 

Zimmi,    129. 


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